Exhibit 10.3
THIS INDENTURE made as of the 1st day of January, 1996.
IN PURSUANCE OF THE SHORT FORMS OF LEASES ACT
B E T W E E N :
TEL-E CONNECT INVESTMENTS LTD.
(hereinafter referred to as the "Lessor")
OF THE FIRST PART,
- and -
XXXXXX INTERNATIONAL LTD.
(hereinafter referred to as the "Lessee")
OF THE SECOND PART.
WITNESSETH in consideration of the rents, covenants and
agreements hereinafter reserved and contained on the part of the Lessee to be
respectively paid, reserved and performed, the Lessor has demised and leased and
by these presents does demise and lease to the Lessee that designated portion
containing approximately thirty-eight thousand, five hundred (38,500) square
feet more or less (subject to adjustment as hereinafter provided) and as more
particularly shown outlined in red on a sketch attached hereto as Schedule "A",
of the building erected on the lands and premises located at 5, 7 and 0 Xxxxxx
Xxxxxxxx, Xxxxx Xxxx, Xxxxxxx and more particularly described in Schedule "B"
attached hereto, together with rights in common with others entitled thereto at
all times, to the common use of the driveways and the parking areas appurtenant
thereto, the said premises and rights of way being hereinafter sometimes
collectively referred to as the "demised premises".
TO HAVE AND TO HOLD the demised premises for and during a
term of seven (7) months computed from the 30th day of January, 1998 and from
thenceforth ensuing and to be fully completed and ended on the 31st day of
August, 1998.
THE LESSEE shall pay from and after the Commencement Date
and throughout the term of the Lease, to the Lessor, in lawful money of Canada
as annual minimum rent the sum of Three Dollars and Eighty-Five Cents ($3.85)
per square foot per annum, being One Hundred and Forty-Eight Thousand, Two
Hundred and Twenty-Five ($148,225.00) Dollars per annum, and shall be payable in
equal monthly installments of Twelve Thousand, Three Hundred and Fifty-Two
Dollars and Eight Cents ($12,352.08) each in advance on the first day of each
calendar month of the term of the Lease.
THE DEMISED PREMISES are leased to the Lessee to be used
only for office and warehouse use, provided that such use at all times is to be
carried on in accordance with the legal requirements of the Municipality and
Province and of any other body, governmental or otherwise, having jurisdiction
thereover.
1. THE LESSEE COVENANTS WITH THE LESSOR:
(a) To pay rent,
(b) To pay to the Lessor as additional rent, monthly on the same
date as the rent is due, one-twelfth of all the taxes
(including local improvement rates), rates, duties,
assessments whatsoever, whether municipal, parliamentary, or
otherwise, now charged, levied, rated or assessed or hereafter
to be charged, levied, rated or assessed against the demised
premises or any part thereof, or any equipment, machinery or
other facilities now or at any time during the term hereof,
brought in or upon the demised premises, or against or upon
the Lessor on account thereof, and including realty taxes and
municipal taxes for local improvements or works assessed
against the property benefited thereby, or any similar taxes
not now in existence or contemplated, but levied at any time
during the term hereof by any competent governmental or
municipal body, in addition to or in lieu of the taxes, rates,
duties, or assessments hereinbefore referred to, except the
Lessor's income taxes, such taxes, rates, duties and
assessments to be estimated by the Lessor and paid by the
Lessee to the Lessor monthly. In the event that any taxes,
rates, duties or assessments are not charged, levied, rated or
assessed separately against the demised premises, then the
Lessee
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shall pay its proportionate share of all such taxes, rates,
duties and assessments in the manner hereinbefore set forth,
and for the purposes of this lease the Lessee's proportionate
share shall be that proportion which the area of the demised
premises bears to the total rentable area in the building of
which the demised premises form a part. Provided that the
Lessor and the Lessee shall at the end of each calendar year
herein adjust the payments so made by the Lessee with the
Lessee's portion of the actual taxes, rates, duties and
assessments, and forthwith reimburse the other party for any
overpayment or deficiency with respect thereto; the Lessee
shall have the right to contest by appropriate legal
proceedings, the validity of any tax, rate (including local
improvement rates), assessment or other charge referred to in
this paragraph; if meanwhile such contestation will involve no
forfeiture, escheat, sale or termination of the Lessor's title
to the demised premises or any part thereof, and provided
further that all such proceedings shall be prosecuted with all
due diligence and dispatch, but upon final termination of any
such contest, the Lessee shall immediately pay and satisfy the
amount of any such tax, rate, assessment or public charge
declared or found to be due, together with all proper costs,
penalties, interest or other charges payable in connection
therewith.
(c) To pay all business taxes from time to time levied against or
payable by the Lessee in respect of the Lessee's occupancy of
the demised premises and to pay all taxes, charges and licence
fees assessed levied or imposed in respect of the personal
property, business or income of the Lessee as and when the
same become due and payable.
(d) To pay all water rates, gas and electric light rates, or other
similar charges against the demised premises, including rental
charges for gas or electrically operated machinery or
equipment, and the cost of heating the demised premises, all
of which form part of the operating costs referred to in
paragraph 9 of this Lease.
(e) Without restricting the generality of the foregoing, it shall
be the obligation of the Lessee to pay any and all liens
resulting from an obligation of the Lessee and the Lessee's
proportionate share of any and all costs, charges, levies,
special or otherwise, and taxes of every nature and
description, and whether imposed or levied or assessed against
the demised premises by any municipal, provincial or federal
authority whatsoever, or due to any person or persons,
including all costs of exterior maintenance, snow removal,
maintenance of the plumbing, heating and electrical and
sprinkler systems, hydro, air-conditioning, water, heat,
electricity, and any and all necessary repairs, and also
including any insurance premiums as herein provided and the
Lessor shall be indemnified and saved harmless by the Lessee
from and against the same, and any and all penalties, losses
and expenses incurred or occasioned thereby.
(f) In the event that the Lessee should fail to make any payment
or payments on any such liens, taxes, duties, assessments,
charges, licence fees, costs, or other rates as hereinbefore
set out, for a period of Fifteen (15) days after written
notice by the Lessor to the Lessee of default on the part of
the Lessee to make the same, then the Lessor shall be entitled
to pay any such accounts and shall be entitled to collect the
amount thereof from the Lessee in the same manner as is herein
provided for the collection of rent in arrears.
(g) Notwithstanding any other provision contained in this Lease,
the Tenant shall pay to the Landlord an amount equal to any
and all single or multi-stage national, provincial or
municipal sales taxes, goods and services taxes, sales taxes,
value added taxes, business transfer taxes, or any other taxes
howsoever characterized imposed on the Landlord and/or the
Tenant with respect to any rental payable by the Tenant to the
Landlord under this Lease, or in respect of the rental of
space under this Lease (herein called "Sales Taxes"), it being
the intention of the parties that the Landlord shall be fully
reimbursed by the Tenant with respect to any and all Sales
Taxes payable by the Landlord on its own behalf or as an agent
of the federal or any provincial or municipal government to
collect and remit Sales Taxes legally imposed upon the Tenant.
The amount of the Sales Taxes so payable by the Tenant shall
be calculated by the Landlord in accordance with the
applicable legislation and shall be paid to the Landlord at
the same time as the amounts to which such Sales Taxes apply
are payable to the Landlord under the terms of this Lease or
upon demand at such other time or times as the Landlord from
time to time determines. Despite any other section in this
Lease, the amount payable by the Tenant under this paragraph
shall be deemed not to be rent, but the Landlord shall have
all of the same remedies for and rights of recovery of such
amount as it has for recovery of rent under this Lease.
2. THE LESSEE acknowledges and agrees that it is intended that
this lease shall be a completely carefree net lease for the Lessor, that the
Lessor shall not be responsible during the term of the lease for any costs,
charges, expenses and outlays of any nature whatsoever in respect of the
lands, building
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or improvements thereon, or the contents thereof, excepting only the Lessor's
income tax in respect of income received from leasing the demised premises,
Corporation tax and principal and interest payments to be made in connection
with any mortgage or mortgages placed on the lands and premises by the Lessor.
3. (a) THE LESSEE covenants and agrees to operate, maintain and keep
the demised premises in such good order and condition, both
inside and out, as they would be kept by a reasonably careful
owner and promptly to make all needed repairs and replacements
as shall be reasonably necessary, including without
limitation, to heating, electricity, drainage, plumbing,
air-conditioning, cooling and sprinkler systems, if any, and
all other fixtures, machinery, facilities and equipment
belonging to and forming part of the demised premises.
(b) THE LESSOR may enter and view the state of repair and the
Lessee will repair as provided in the herein preceding
provisions during the currency of this lease and/or any
renewals thereof according to notice in writing, subject only
to the exceptions in the aforesaid provisions. Provided
further that if the Lessee shall neglect with reasonable
promptness after such notice in writing or shall refuse to
make or cause such repairs to be made the Lessor may make or
cause such repairs to be made. All reasonable and proper
expenses incurred and expenditures made by or on behalf of the
Lessor under this provision shall be forthwith paid by the
Lessee and if the Lessee fails to pay the same then the Lessor
may add the same to the Lessee's rent and recover the same by
all remedies available to the Lessor for the recovery of rent
in arrears.
4. THE LESSEE will at the expiration or sooner termination of
the said term, and/or any renewals thereof peaceably surrender and yield up
to the Lessor the demised premises together with all the buildings,
structures and improvements thereon in good and substantial repair and
condition as they would be kept by a reasonably careful owner.
5. (a) THE LESSEE shall indemnify and save harmless the Lessor of and
from all manner of actions, causes of actions, suits, debts,
loss, costs, dues, covenants, contracts, claims and demands of
any nature whatsoever arising or which may arise in respect of
any injury to any person or for any loss or damage to any
property belonging to the employees, invitees, or licencees of
the Lessee or any other person while such person or property
is in or about the building or any other part of the demised
premises, and the Lessor shall in no way be responsible for
any injury to or loss or damage to any property of the Lessee
or the Lessee's business including, without limiting the
generality of the foregoing, any loss of or damage to any such
property caused by theft, breakage, or by steam, water, rain
or snow which may leak into, issue or flow from any part of
the said building or any adjacent or neighbouring lands or
premises; or from water, steam or drainage pipes or plumbing
works of the same, or from any other place or quarter or for
any damage caused by or attributable to the condition or
arrangement of any electric or other wiring or from any damage
caused by anything done or omitted to be done.
(b) THE LESSEE shall further indemnify and save harmless the
Lessor from any and all liabilities, fines, suits, claims,
demands, costs and actions of any kind or nature whatsoever to
which the Lessor shall or may become liable for or suffer by
reason of any breach, violation or non- performance by the
Lessee of any covenant, term or provision hereof or by reason
of any injury, loss, damage or death resulting from,
occasioned to or suffered by any person or persons or any
property by reason of any act, neglect or default on the part
of the Lessee or any of its agents, customers, employees,
servants, contractors, licencees or invitees, in or about the
demised premises or any part thereof; such indemnification
with respect to any such breach, violation, non-performance,
damage to property, loss, injury or death occurring during the
term of this lease shall survive any termination of this
lease, anything to the contrary notwithstanding.
6. (a) THE LESSEE shall maintain in respect of its property on
the demised premises, fire insurance with extended coverage
and water damage insurance, including sprinkler leakage or
discharge, and where applicable, boiler and pressure vessel
insurance to cover all of its improvements, furniture,
fittings, fixtures and stock in trade, in amounts adequate
to cover fully any loss that the Lessee could sustain.
(b) THE LESSEE shall further maintain a policy or policies of
insurance against loss of rental income and taxes payable
under this lease to the full amount of such rental income and
taxes with loss payable to the Lessor.
(c) Unless other provision satisfactory to the Lessor is made to
cover loss in regard thereto, the Lessee shall maintain
insurance upon all glass and plate glass in or forming part of
the demised premises including the store front, if applicable,
against breakage or damage from
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any cause including the elements, war and riots and civil
commotion.
(d) THE LESSEE shall maintain for the mutual benefit of the Lessor
and the Lessee, liability insurance against claims for
personal injury, death or property damage occurring upon, in
or about the demised premises, such insurance to afford
protection to the limit of not less than Two Million Dollars
($2,000,000.00) for all deaths, injuries or loss of or damage
to property.
(e) All such policies shall waive recourse and any other rights of
subrogation against the Lessor, shall be on terms and
conditions and with insurers satisfactory to the Lessor and
shall provide (or the insurer shall agree) that no policy
shall be cancelled or its coverage reduced without Thirty (30)
days prior written notice to the Lessor. The Lessee agrees to
maintain all such insurance in good standing at all times and
to pay premiums thereon as and when same become due. The
Lessor shall at all times be supplied with proper evidence of
such insurance being in force and the Lessee shall supply to
the Lessor evidence of the continuation of such insurance
coverage at least Thirty (30) days prior to the expiry of such
policy or policies of insurance. In the event that the Lessee
shall fail to make payments on any such premium as and when
the same becomes due, then the Lessor shall be entitled to pay
such premium and shall be entitled to collect the amount
thereof from the Lessee in the same manner as herein provided
for the collection of rent in arrears.
7. THE LESSOR will insure and keep insured during the term
hereof, the building in which the demised premises are situate and all
property and interest of the Lessor therein against loss under fire and
extended coverage and supplemental risk insurance and boiler and pressure
vessel insurance, to the extent as would a prudent owner from time to time;
provided that nothing herein contained shall prevent the Lessor insuring with
broader coverage. In addition to the Lessee's proportionate share of
insurance costs payable pursuant to paragraph 9 hereof, the Lessee shall pay
the full amount of any increase in insurance rates arising from the use of
the premises made by the Lessee.
8. If any insurance policy upon the building in which the
demised premises are situate or the demised premises shall be cancelled by
the insurer by reason of the use and occupation of the demised premises or
any part thereof by the Lessee or by any subtenant or by any one permitted by
the Lessee to be upon the demised premises, the Lessor may, at its option,
terminate this lease forthwith by notice in writing to the Lessee of its
intention to do so, and thereupon rent and any other payment for which the
Lessee is liable under this lease shall be paid in full to the date of such
termination of the lease and the Lessee shall immediately deliver up vacant
possession of the demised premises to the Lessor.
9. (a) THE LESSEE covenants to pay to the Lessor by monthly
installments to be fixed from time to time by the Lessor and
as additional rent, its proportionate share of all costs
during the term hereby granted which may occur including,
without limitation, insurance to be maintained by the Lessor
pursuant to paragraph 7 hereof, maintenance, replacements and
repairs of and to the building, water, drainage, plumbing,
air-conditioning, cooling and sprinkler systems, if any, and
all other fixtures, machinery, facilities, equipment and
systems, to the extent that the same are not required to be
repaired by any individual tenant, parking area and other
common areas used in conjunction with the demised premises,
including lighting, cleaning, painting, snow removal,
insurance against claims, repairs and replacements of curbs,
walkways, paving and landscaping, and any and all other costs,
charges and expenses payable by the Lessor which are directly
attributable to the operation and maintenance of the building
in which the demised premises are situate as allocated by the
Lessor's accountants in accordance with generally accepted
accounting principles, plus an allowance equal to the Lessee's
proportionate share of fifteen (15%) percent of the aggregate
of all such costs referred to above and the taxes, rates,
duties and assessments payable pursuant to paragraph 1(b)
hereof in respect of the Lessor's management and
administrative costs, all of which are hereinafter
collectively referred to as the "operating costs".
(b) THE LESSEE's portion of the operating costs shall be that
proportion which the area of the demised premises bears to the
total rentable area in the building of which the demised
premises form a part.
(c) THE LESSOR and the Lessee agree that in lieu of the Lessor
determining the actual amount of the operating costs, it is
acknowledged and agreed that the operating costs are fixed at
the rate of One Dollar and Twenty-Five Cents ($1.25) per
square foot per annum during the term of this Lease and any
renewal thereof payable in monthly installments of Four
Thousand and Ten Dollars and Forty-Two Cents ($4,010.42). The
Lessor and the Lessee further acknowledge and agree that such
amount of One Dollar and Twenty-Five Cents ($1.25) per square
foot per annum includes the Lessee's proportionate share of
utility
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charges (water rates, gas and electric and heating charges).
It is further expressly acknowledged and agreed that in
addition to the fixed operating costs of One Dollar and
Twenty-Five Cents ($1.25) per square foot per annum payable by
the Lessee, the Lessee is obligated to pay its proportionate
share of realty taxes and its business taxes as set in
paragraphs 1(b) and (c) of this Lease.
10. THE LESSEE shall not allow any ashes, refuse, garbage or
any other loose or objectionable material to accumulate on or about the
demised premises or common areas, washrooms, elevators, hallways, stairways,
driveways, sidewalks, parking or delivery areas, and will at all times keep
the demised premises in clean and wholesome conditions and shall be
responsible for the removal of all garbage or loose or other objectionable
material which shall be deposited and dealt with in such manner as the Lessor
may from time to time require.
11. THE LESSEE agrees that it will not do or omit or permit to
be done or omitted upon the demised premises anything which shall be or
result in a nuisance. The Lessee shall not bring upon the demised premises or
any part thereof any machinery, equipment, article or thing that by reason of
its weight, size or use might damage the floors of the demised premises and
that if any damage is caused to the demised premises by any machinery,
equipment, article or thing or by overloading or by any act, neglect or
misuse on the part of the Lessee or any of its servants, agents or employees
or any person having business with the Lessee, the Lessee shall forthwith
repair the same or pay to the Lessor the cost of making good the same.
12. (a) THE LESSEE shall not assign this lease, sublet, part with, or
share the occupation of, the demised premises or any portion
thereof without the written consent of the Lessor first had
and obtained, such consent not to be unreasonably or
arbitrarily withheld. The Lessee shall furnish to the Lessor
copies of any assignment, sub-lease, licence or other
agreement herein contemplated, provided that no assignment,
sub-letting, licensing or parting with or sharing possession
of the demised premises shall in any way release or be deemed
to release the Lessee (or any guarantor hereof) from its or
their obligations under the terms of this lease.
(b) If the Lessee is a corporation, the Lessee further shall not
permit the change of effective management or control, directly
or indirectly, of the Lessee without the written consent of
the Lessor first had and obtained, such consent not to be
unreasonably or arbitrarily withheld; provided that the
Lessor's consent shall not be required for any corporate
Lessee whose shares are listed on any recognized stock
exchange or for any sale or other disposition of shares by the
present shareholders to and between themselves or for any
transmission of shares on death or by operation of law.
13. THE LESSEE shall not sell, dispose of or remove any of its
goods and chattels from the demised premises except in the ordinary course of
the Lessee's business.
14. THE LESSEE shall not, without the prior written consent of
the Lessor, erect, instal, or maintain any exterior sign of whatsoever
nature, or any window or door sign, lettering, placard or other advertising
matter of whatsoever nature, if all or any part of such sign, lettering,
placard or other advertising matter is painted upon or posted or otherwise
affixed to the exterior of the building of which the demised premises form a
part, or to the exterior of the demised premises, or to the interior or
exterior of or is visible through any window or door. The Lessee shall not
use or maintain or permit any signs or advertising media whatsoever upon or
in or about the demised premises that is not of good professional quality or
that the Lessor in its sole discretion deems objectionable or unsuitable to
it or to the other tenants in the building of which the demised premises form
a part. The Lessee shall not install any exterior lighting, plumbing
fixtures, shades, awnings, exterior decorations or painting or marking or
erect or permit any insignia barrier, aerial mast, or like device or
installation, without the prior written consent of the Lessor. Prior to the
termination of this lease for any reason, the Lessee shall, at its sole cost,
if required to do so by the Lessor, remove all signs or other installations
of the kind herein referred to, making good and fully repairing any damage
occasioned by such installation or removal.
15. (a) In the event that the Lessee shall, during the term of the
within lease and/or any renewal thereof, desire to affix or
erect partitions, counters or fixtures in any part of the
walls, floors or ceilings of the demised premises, it may do
so at its own expense at any time and from time to time
provided that the Lessee's rights to make such alterations to
the demised premises shall be subject to the following
conditions:
i) That before undertaking any such alterations, the
Lessee shall submit to the Lessor a plan showing
the proposed alterations, and shall obtain the
approval and consent of the Lessor to the same.
ii) That all such alterations shall conform to all
building and zoning by-laws and regulations, if
any, then in force affecting the demised
premises.
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iii) That such alterations shall not be of such kind
or expense as to in any manner weaken the
structure of the building after the alterations
are completed or reduce the value of the
building,
and except as herein provided the Lessee will not erect or
affix or remove or change the location or style of any
partitions or fixtures without the written consent of the
Lessor being first had and obtained.
(b) THE LESSEE may at the expiration of the term hereof, or any
renewals thereof, if it shall not then be in default
hereunder and shall have performed all covenants on the
part of the Lessee hereunder to be performed, remove from
the premises all the Lessee's trade fixtures, but the
Lessee shall in such removal do no damage which may be
occasioned thereto and restore the same to their condition
prior to such removal. Provided further that the Lessor may
require the Lessee to restore the demised premises to the
same condition as they were at the commencement of this
lease and before any alterations, additions or improvements
had been made by the Lessee.
(c) On any termination of this lease by reason of default on the
part of the Lessee, all fixtures, tenant's improvements or
other installations in the demised premises, which in law are
fixtures or a part of the realty or are attached, affixed to
or incorporated into the immoveable properties situated in or
upon the demised premises or any portion of the building and
lands of which the demised premises form a part, and which are
not the property of the Lessor, shall at the Lessor's option
forthwith become the property of the Lessor, and whether or
not such fixtures are in the nature of tenant's trade fixtures
and whether or not they would be removable by the Lessee at
the expiry of the term of this lease if there had been no
default.
(d) THE LESSEE agrees to pay the cost of any installations,
additions or alterations to the said premises that the Lessor
may be required to make by any municipal, provincial or other
governmental authority or requested by any private protective
system used by the Lessee for the security and protection of
the Lessee and its employees and its or their effects
including but not so as to limit the foregoing, installations,
additions and alterations for fire and theft protection and
all such installations, additions or alterations shall
forthwith become the property of the Lessor.
(e) THE LESSEE agrees to comply with and conform to the
requirements of all applicable statutes, laws, by-laws,
regulations, ordinances and orders from time to time or at any
time in force during the term hereof and affecting the
condition, equipment, maintenance, use or occupation of the
demised premises, and with every applicable regulation, order
and requirement of the Canadian Fire Underwriters'
Association, or any body having a similar function, or of any
liability or fire insurer by which the Lessor and Lessee or
either of them may be insured at any time during the term
hereof pertaining to the demised premises.
16. ANY AND ALL additional rents or payments to be paid by the
Lessee and not separately assessed or charged to the demised premises shall
be paid by the Lessee in the proportion in which the area of the demised
premises bears to the total rentable area in the building of which the
demised premises form a part.
17. EXCEPT as otherwise expressly provided herein this lease
shall not be terminable by the Lessee for any reason, nor shall the Lessee
for any reason be entitled to any abatement of, or reduction in, the rent
payable by the Lessee hereunder, it being expressly understood and agreed
that except as otherwise provided herein the Lessee shall, throughout the
term of this lease, in every event and under all circumstances continue to
pay to the Lessor in the manner hereinbefore provided the full rental payable
under the terms hereof without deduction, abatement or set-off.
18. THE LESSOR covenants with the Lessee for quiet enjoyment,
subject to the Lessee complying with all of the Lessee's covenants and
obligations contained in this lease.
19. THE LESSOR shall have the right during the term of this
lease, at any reasonable time, during the Lessee's normal business hours to
show the demised premises to any prospective purchaser and shall further have
the right during a period of Six (6) months prior to the termination of this
lease and/or any renewal thereof, at any reasonable time, during the Lessee's
normal business hours, to show the demised premises to any prospective tenant.
20. If and whenever the rents or other payments set out in this
lease, or any part thereof, shall be in arrears or unpaid for fifteen (15)
days after any of the days on which the same ought to have been paid,
although no formal or other demand shall have been made therefor; or in case
there be default or breach or
Page 7
non-performance of any of the other covenants or agreements in this lease
contained on the part of the Lessee, and such default shall continue for a
period of fifteen (15) days after written notice thereof to the Lessee, (or such
longer period as may be reasonably necessary in case of a default which cannot
with due diligence be cured in a period of fifteen (15) days) except in case of
a default which cannot with due diligence be cured in a period of fifteen (15)
days, or if the Lessee fails to proceed with all due diligence to cure the same,
this lease shall at the option of the Lessor be and become forfeited and void
and the Lessor shall have the right to enter into and take immediate possession
of the demised premises or any part thereof in the name of the whole and enjoy
as of the Lessor's former estate, anything herein contained to the contrary
notwithstanding; no acceptance of rent subsequent to any default or breach,
other than non- payment of rent, and no condoning, excusing or overlooking by
the Lessor on previous occasions of any breach or default similar to that for
which re-entry is made shall be taken to operate as a waiver of this condition,
or in any way to defeat or affect the right of the Lessor hereunder.
21. IN CONSIDERATION of the premises and of the leasing and
renting by the Lessor to the Lessee of the said premises herein before and
hereinafter referred to for the term hereby created, notwithstanding anything
contained in The Landlord and Tenant Act or in any other Statute which
hereafter be passed to take the Place of the said Act or to amend the same,
none of the goods or chattels of the said Lessee at any time during the
continuance of the term created and/or any renewals hereof on the said
demised premises shall be exempt from levy by distress for rent in arrears by
the said Lessee as provided for by the said section or sections of the Act
above named or any amendments or amendment thereto. Upon any claim being made
by the said Lessor this covenant and agreement may be pleaded as an estoppel
against the said Lessee in any action brought to test the right to the
levying upon any such goods as are named as exempt in the said section or
sections, the said Lessee waiving as it hereby does all and every benefit
that could or might have accrued to it under and by virtue of the said
section or sections of the said Act or any amendment or amendments thereto
but for the above covenant.
22. PROVIDED and it is hereby expressly agreed that in case,
without the written consent of the Lessor, the demised premises shall become
and remain vacant or not used for a period of fifteen (15) days while the
same are suitable for use by the Lessee, or be used by any other person than
the Lessee, or in case the terms hereby granted and/or any renewal thereof,
or any of the goods and chattels of the Lessee shall be at any time ceased or
taken in execution or in attachment by any creditor of the Lessee, or the
Lessee shall make any assignment for the benefit of creditors or give any
Xxxx of Sale without complying with The Bulk Sales Act (Ontario) or become
bankrupt or insolvent or make a proposal to its creditors or take the benefit
of any act now or hereafter enforced for bankrupt or insolvent debtors or any
order shall be made for the winding up of the Lessee, then and in every such
case the then current month's rent and the next ensuing three months' rent
shall immediately become due and payable, and, at the option of the Lessor
this lease shall cease and the said term shall immediately become forfeited
and void, in which event the Lessor may re- enter and take possession of the
demised premises as though the Lessee or any occupant or occupants of the
demised premises was or were holding over after the expiration of the term
without any right whatever.
23. THE LESSEE further covenants and agrees that on the Lessor
becoming entitled to re-enter upon the demised premises under any of the
provisions of this lease, the Lessor in addition to all other rights, shall
have the right to enter the demised premises as the agent of the Lessee,
either by force or otherwise, without being liable for any prosecution
therefor, and to re-let the demised premises as the agent of the Lessee and
to receive the rent therefor, and as the agent of the Lessee, to take
possession of any and all chattels or other property of the Lessee on the
demised premises and to sell the same at public or private sale without
notice and to apply the proceeds of such sale and any rent thereof from
re-letting the demised premises upon account of the rent under this lease and
the Lessee shall be liable to the Lessor for the deficiency, if any.
24. (a) PROVIDED THAT if during the term of this lease and/or any
renewals thereof the demised premises are destroyed by
explosion, fire, lightning, tempest, acts of God or the
Queen's enemies, or are partially destroyed so as to render
the demised premises wholly unfit for occupation for the
purposes of the Lessee and if they shall be so badly damaged
that in the reasonable opinion of the Lessor they cannot with
reasonable diligence be repaired or rebuilt within one hundred
and eighty (180) days of the happening of such damage, or if
Fifty (50%) percent or more of the building in which the
demised premises are situate is so damaged or destroyed, then
this lease shall at the Lessor's or Lessee's option (to be
exercised within thirty (30) days of the date of such damage
or destruction or partial destruction) cease and become null
and void from the date of such damage or destruction or
partial destruction and in the event of such termination as
above mentioned the Lessor may re-enter or repossess the
premises discharged of this lease.
(b) In the event that neither party hereto shall elect to
terminate this lease by reason of the damage, destruction or
partial destruction as above mentioned, or if the premises
shall be repairable as aforesaid within one hundred and eighty
days (180) from the happening of such injury, in the
reasonable opinion of the Lessor, or if the demised premises
are only
Page 8
partially destroyed so as to render a portion of the demised
premises fit for occupation for the purposes of the Lessee,
the rent payable hereunder shall be reduced or abated
proportionate to the nature and extent of the damage sustained
until the said demised premises shall have been fully repaired
and made fit for the purposes of the Lessee, and the Lessor
covenants and agrees with the Lessee to forthwith proceed and
carry on with all diligence and completion of such repairs and
replacements as shall be necessary to repair or replace and
make the demised premises in as good a state, plight and
condition as they were immediately prior to the happening of
such damage save and except for any of the Lessee's additions,
alterations, improvements, furniture, fittings, fixtures and
stock in trade.
(c) PROVIDED that even if the premises are repairable within one
hundred and eighty (180) days but the unexpired portion of the
term of this lease is less than two (2) years at the time of
such damage or destruction or partial destruction then the
Lessor and the Lessee shall have the option, to be exercised
within thirty (30) days of the date of such damage or
destruction or partial destruction, of declaring this lease
null and void from the date of such damage or destruction or
partial destruction.
25. IN THE EVENT that an action shall be commenced by the
Lessor for recovery of possession of the demised premises, for the recovery
of rent or by other amount due under the provisions of this lease, or because
of the breach of any other covenants herein contained on the part of the
Lessee to be kept or performed and a breach shall be established, the Lessee
shall pay to the Lessor all expenses incurred by the Lessor therefor,
including all solicitor's fees in respect thereof on a solicitor-client basis.
26. IF THE LESSEE continues to occupy the demised premises with
the consent of the Lessor after the expiration of this lease and/or any
renewal thereof without any further written agreement, the Lessee shall be a
monthly tenant at a monthly rental equal to the agreed monthly rental
hereinbefore or hereinafter provided for and upon the same terms and
conditions as herein set out.
27. FAILURE of the Lessor to insist upon the strict compliance
with and performance of all the terms, conditions, obligations and agreements
contained herein in any one or more instances shall not be construed as a
waiver or relinquishment in respect thereof thereafter. The prompt and
punctual performance of all such terms, conditions, obligations, covenants
and agreements contained herein is of the essence of this lease. No surrender
of this lease shall be valid unless accepted by the Lessor in writing. The
subsequent acceptance of rent hereunder by the Lessor, whether for any prior,
present or future period of the term, shall not be deemed to be a waiver of
any preceding breach by the Lessee of any term, covenant or condition of this
lease including, without limitation, non-payment of rent, additional rent or
any other monies required to be paid by the Lessee pursuant to this lease,
regardless of the Lessor's knowledge of such preceding breach at the time of
acceptance of such rent, and the Lessor shall be entitled to pursue any
remedy available to it under this lease or at law as if there were no
subsequent acceptance of rent (except to the extent of the Lessee being
credited with the amount of any subsequent payment of rent against any
payments due to the Lessor, which may be allocated as the Lessor in the
Lessor's sole discretion determines). No covenant, term or condition of this
lease shall be deemed to have been waived by the Lessor unless such waiver is
in writing and signed by the Lessor.
28. THIS LEASE is subject and subordinate to all mortgages
which may now or hereafter affect the herein lands and premises and to all
renewals, modifications, consolidations, replacements and extensions thereof.
The Lessee agrees to execute promptly any certificate in confirmation of such
subordination as the Lessor may request from time to time and hereby
constitutes the Lessor the agent or attorney of the Lessee for the purpose of
executing any such certificate and of making application at any time and from
time to time to register postponements of this lease in favour of any such
mortgage in order to give effect to the foregoing provisions of this
paragraph.
29. THE LESSEE covenants that it will, if and whenever
reasonably required by the Lessor, if necessary, consent to and become a
party to any reasonable instrument relating to this lease, including the
delivery of statements as to the status of this lease, which may be required
by or on behalf of any purchaser, mortgagee, insurer or other person, firm or
corporation which may have an interest in the demised premises. The Lessee
shall further submit to the Lessor, from time to time, forthwith upon written
request therefor, the last properly audited financial statements of the
Lessee, for the purpose of assisting the Lessor in arranging loans or
mortgages or in connection with any prospective sale of the demised premises.
30. THE LESSEE shall supply the Lessor annually on each
anniversary date of this lease with a series of twelve (12) post-dated
cheques, each in the amount required to cover the monthly payments of rent
and additional rent for each year of the term of this lease. Failure on the
part of the Lessee to supply post-dated cheques as aforesaid within fifteen
(15) days of each anniversary date of this lease shall render the Lessee in
default hereunder and the Lessor may thereupon exercise all of its remedies
available to it hereunder or by law.
Page 9
31. THE LESSEE hereby acknowledges having inspected the demised
premises and accepts the demised premises in an "as is" condition, it being
acknowledged that the Lessor shall not be required to perform any work or
services whatsoever in preparing the demised premises for the use and
occupation of the Lessee.
32. IF THE LESSEE fails to pay, when the same is due and
payable, any rent or additional rent payable under this lease, such arrears
shall bear interest at the rate of Four (4%) percent per annum above the
prime rate charged from time to time by the Lessor's bank from the date any
such payment is due and until paid to the Lessor, calculated daily and
compounded monthly until all arrears and interest are paid.
33. ALL notices, elections and requests which may be required
to be given by either the Lessor or the Lessee herein shall be in writing and
either served personally or sent by postage prepaid registered mail
addressed, if to the Lessor - ______________________________________________
_______________________________________and if to the Lessee at the demised
premises, or to such other address as the Lessor and the Lessee may from time
to time respectively designate by notice in writing given pursuant to this
paragraph. Any such notice election or request shall, if mailed as aforesaid,
be deemed to have been received on the 3rd business day following the date of
mailing, except in the case of a postal strike, when delivery by personal
service will be required.
34. WHENEVER in this lease reference is made to the demised
premises, it shall include all structures, improvements and erections in and
upon the demised premises or any part thereof from time to time.
35. THIS Indenture and everything herein contained shall be
binding upon and enure to the benefit of the parties hereto, their heirs,
executors, administrators, successors and assigns, subject to the consent of
the Lessor being obtained as hereinbefore provided to any assignment or
sublease by the Lessee.
36. THE words importing the singular number only shall include
the plural and vice versa and words importing the masculine gender shall
include the feminine gender and words importing persons shall include firms
and corporations and vice versa. Unless the context otherwise requires, the
word "Lessor" and the word "Lessee" wherever used herein shall be construed
to include and shall mean the executors, administrators, successors and/or
assigns of the said Lessor and Lessee respectively, and when there are two or
more Lessees bound by the same covenants herein contained, their obligations
shall be joint and several.
37. If two or more individual corporations, partnerships or
other entities sign this Lease as Lessee:
(a) the liability of each such individual, corporation,
partnership or other entity to pay all rents and perform all
other obligations hereunder shall be joint and several; and,
(b) each such individual, corporation, partnership and other
entity hereby agrees with the Lessor that the Lessor may
wholly or partially discharge one or more of them by release
or by accord and satisfaction from its obligations hereunder
and such of them as are not so discharged shall remain as
fully liable for the performance of the obligations of the
Lessee hereunder as if such of them not so discharged were
the only persons originally comprising the Lessee hereunder,
and that the foregoing shall be applicable notwithstanding
any rule or principle of law to the contrary.
38. THE LESSEE if not then in default, shall have the option to
renew the term of this lease for a further period of three (3) months to
November 30, 1998, upon notice in writing at least sixty (60) days prior to
August 31, 1998, upon the same terms and conditions except for any further
right of renewal and except that the annual minimum rent during the renewal
term shall be at the rate of Four ($4.00) Dollars per square foot per annum.
39. NOTWITHSTANDING anything herein contained to the contrary,
the Lessor shall have the right to enter the demised premises upon reasonable
notice during business hours, for the purpose of permitting the Lessor and
its professional consultants to take measurements and make plans for proposed
work and renovations to be performed to the demised premises.
40. IT IS EXPRESSLY agreed that the Lessor shall have the
right, exercisable upon sixty (60) days notice in writing, to occupy the
existing reception area of the demised premises and to provide to the Lessee
a suitable alternative reception area for the remainder of the lease term and
any renewal thereof, in which event appropriate adjustment shall be made to
the rent payable by the Lessee, if applicable.
IN WITNESS WHEREOF the parties hereto have executed these
presents.
Page 10
SIGNED, SEALED AND DELIVERED )
in the presence of: ) TEL-E CONNECT INVESTMENTS LTD.
)
)
) Per: /s/ President c/s
) ------------------------------
) Name:
) Title:
)
)
) XXXXXX INTERNATIONAL LTD.
)
)
) Per: /s/ Xxxxx Xxxxxx c/s
) -----------------------------
) Name: Xxxxx Xxxxxx
) Title: Chairman
)
)
