EXHIBIT 10.4
COMMERCIAL LEASE
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MADE THE DAY OF AUGUST, 1999
BETWEEN:
ST. XXXXXXX XXXXXX INC.
- AND - (THE "LANDLORD")
116630 ONTARIO INC.
(THE "TENT")
In consideration of the rents, covenants and obligations stipulated herein
the Landlord and the Tenant have agreed to enter into a Lease of the premises at
00 Xx. Xxxxxxx Xxxxxx (the "Building"),5th Floor , in the City of Toronto, those
premises in the said Building consisting of approximately 3025 square feet, more
or less (the "Premises"), the Premises having been inspected by the Tenant and
the Tenant acknowledges that other than the work to be performed by the Landlord
in Section 12 that it is entering into this Lease and is accepting the Premises
on an "as is" basis.
1. GRANT OF LEASE
(1) The Landlord leases the Premises to the Tenant:
(a) at the Rent set forth in Section 2;
(b) for the Terms set forth in Section 3; and
(c) subject to the conditions and in accordance with the covenants,
obligations and agreements herein.
(2) The Landlord covenants that he has the right to grant the leasehold
interest in the Premises free from encumbrances except as disclosed on
title.
2. RENT
(1) Minimum Rent means the amounts payable by the Tenant w the Landlord
pursuant to this Section.
(2) The Tenant covenants to pay to the Landlord, during the Term of this
Lease Minimum Rent as follows:
For the Term commencing November 1, 1999 to October 31, 2004, the Minimum
Annual Rent shall be $25,712.50 plus G.S.T., payable $2,142.71 per month
plus G.S.T., without set off or deductions on the first of each and every
month;
(3) The Tend further covenants to pay all other sums required by this Lease
to be paid by him and agrees that all amount payable by the Tenant to the
Landlord or to any other party pursuant to the provisions of this Lease
shall be deemed to be Additional Rent ("Additional Rent") and shall be
collectable as Rent in arrears .whether or not specifically designated as
such in this Lease.
(4) The Landlord and the Tenant agree that it is their mutual intention
that this Lease shall be a completely carefree net lease for the landlord
and that the Landlord shall not, during the Term of this Lease, be required
to make any payments in respect of the Premises other than charges of a
kind personal to the Landlord (such as income and estate taxes and mortgage
payments):
(a) and to effect the said intention of the parties the Tenant
promises to pay all charges relating to the maintenance,
management and operation of the Building including but not
limited to the following expenses related to the
Premises/Building, all amours payable as Additional Rent,
(i) we pay to the Landlord or to the charging authority all
taxes levied, made or imposed against the Demised Premises
in respect of the business or other activity of the Tenant
and the income or property of the Tenant;
(ii) to pay to the landlord or to the charging authority as the
same become due, all charges for public utilities, including
water, gas, electrical power or energy, steam or hot water
used upon or in respect of the Demised Premises and for
fittings, machines, apparatus, meters or other things leased
in respect thereof, and for all work or services performed
by an corporation in commission in connection with such
public utilities;
(iii) services supplied to the Premises and its proportionate
share of services supplied to the Building, provided that
this does not in any way oblige the Landlord to provide any
services, unless otherwise agreed in this Lease;
(iv) management fees being fifteen percent of the Additional
Rent;
(v) its proportionate share of accounting and legal fees
relating to the Building;
(vi) to gay its proportionate share of the cost of fire, public
liability, glass, pressure vessel and rental insurance
premiums as provided for in Section 8;
(vii) sales tax, G.S.T., capital tax relating to the Building and
any other taxes imposed on the Landlord respecting the Rent;
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(viii) to pay the Landlord as additional rent, its proportionate
share of all taxes (including local improvements), rates,
charge, excises, levies and assessments (the "Taxes")
whatsoever whether municipal, provincial, federal, imposed
or assessed against the Demised Premises or any part
thereof, or against the Landlord on account of the Demises
Premises, its use or occupation. If no separate assessment
notice is issued for the Demises Premises, the Landlord may
estimate the amount of the assessment attributable to the
Demises Premises in an equitable manner, acting reasonably,
and this assessment shall form the basis of the Tenant's
liability for taxes.
The Landlord will, at the commencement of this Lease and
thereafter at the beginning of each tax year, estimate the
yearly taxes and the Tenant shall pay to the Landlord
one-twelfth (1/12) of these estimated yearly taxes on each
rental payment date. If the mate of monthly tax payments is
at any time insufficient to pay any tax xxxx then due, the
Tenant shall forthwith upon demand pay the deficiency. As
soon as practicable after receipt by the Landlord of the
final bills in respect to taxes, the tax payments made by
the Tenant shall be adjusted, and any over or under payment
shall be paid forthwith by the Tenant to the Landlord or by
the Landlord to the Tenant as applicable;
(ix) to pay its proportionate share of the costs of maintenance,
said maintenance including but not limited to the cost of
the repair and maintenance of driveways, window cleaning,
superintendent costs, panting areas and airy other common
areas, the repainting, when necessary of all exterior
woodwork and metalwork now painted aril the maintenance of
all mechanical equipment and installations, but not capital
repairs to same in accordance with generally accepted
accounting practices; and
(x) all other charges, impositions, costs and expenses of every
nature and kind whatsoever;
(b) and if any of the foregoing charges are invoiced directly to the
Tenant, the. Tenant shall pay same as and when they biome due and
shall produce proof of payment to the Landlord immediately if
requested to do so;
(c) and the Tenant hereby agrees to indemnify and protect the
Landlord from arty liability accruing to the Landlord in respect
of the expenses payable by the Tenant as provided for herein;
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(d) and if the Tenant fails to make any of the payments required by
this Lease then the Landlord may make such payments and charge to
the Tenant as Additional Rent the amounts paid by the Landlord;
(i) and if such charges are not paid by the Tenant on demand the
Landlord shall be entitled to the same remedies and may take
the same steps for recovery of the unpaid charges as in the
event of Rent in arrears.
(5) Additional Rent shall be payable in monthly installments in advance on
the same dates stipulated for payment of Rent in Section 2 (2) and the
Landlord shall no more than once a year provide the Tenant with a Statement
providing such information as may be required to calculate accurately the
amounts payable by the Tenant as Additional Rent:
(a) prior to the first such statement being delivered the payments of
Additional Rent shall be based on the Landlord's estimate of the
expenses chargeable to the Tenant, the landlords estimate or the
first year shall be $4.033.33 plus G.S.T. per month;
(b) in the event that any such statement indicates that the amounts
paid by the Tenant for Additional Rent are either more or less
than the amount required pursuant to the statement then:
(i) if the Tenant has underpaid in respect of Additional Rent,
the Tenant shall pay said amount within 15 days;
(ii) if the Tenant has overpaid in respect of Additional Rent the
adjustment may be made by way of reduction of the next
ensuing installments of Rent.
(6) All payments to be made by the Tenant pursuant to this Lease shall be
delivered to the Landlord at the Landlord's address for service set out in
Section 15 or to such other place as the Landlord may from time to time
direct in writing.
(7) The Tenant agrees to pay in advance to the Landlord at the commencement
of the Term the sum of $13,216.74 which shall be applied as a deposit on
account of the first and last month payments of Minimum and Additional
Rent.
(8) All Rent in arrears and all sums paid by the Landlord for expenses
incurred which should have been paid by the Tenant shall bear interest from
the date payment was due, or made, or expense incurred at rate per annum
equal to the prime commercial lending rate of the Landlord's bank plus five
(5) per cent.
(9) The Tenant acknowledges and agrees that the payments of Rent and
Additional Rent provided for in this Lease shall be made without any
deduction for any reason whatsoever unless expressly allowed by the terms
of this Lease or agreed to by the Landlord in writing; and
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(a) no partial payment by the Tenant which is accepted by the
Landlord shall be considered as other than a partial payment on
account of Rent owing and shall not prejudice the Landlord's
right to recover any Rent owing.
(10) Tenants proportionate share shall be equivalent to 9.32% of the total
cost if services or costs are supplied or incurred for the entire Building.
If services are supplies to a portion of the Building, Tenants
proportionate share shall be defined as the ratio of Rentable Area of the
Premises (3025) over the whole of the Rentable Area of the portion of the
Building to which services are supplied or costs are incurred.
3. TERM AND POSSESSION
(1) The Tenant shall have possession of the Premises for a period of five
years, commencing on the 1st day of November 1, 1999 ("Commencement Date"),
continuing monthly thereafter and ending on the last day of October, 2004
(the "Term").
(2) Upon at least six months written notice to the Landlord, said nice to
be provided prior to the expiry of the initial terns of Lease, and provided
the Tenant has not been and is not in default under the terms of the Lease,
the Tenant shall have the OPTION TO RENEW the Lease ("Renewal Term") for a
further term of five (5) years on the same terms and condition as the
Lease, save and except there shall be no further right to renew and no
requirement for any Landlords work and the Minimum Rent which shall be
mutually agreed based on the then current market rental rate for similar
premises in similar buildings.
(3) Subject to the Landlord's rights under this Lease, and as long as the
Lease is in good standing the Landlord covenants that the Tenant shall have
quiet enjoyment of the Premises during the Term of this Lease with. any
interruption or disturbance from the Landlord or any other person or
persons lawfully claiming through the Landlord.
4. ASSIGNMENT
(1) The Tenant shall not assign this Lease or sublet the whole or any part
of the Premises unless he first obtains the consent of the Landlord in
writing, which consent shall not unreasonably be withheld.
(2) The consent of the Landlord to airy assignment or subletting shall n
operate as a waiver of the necessity for consent to any subsequent
assignment of subletting.
(3) Every request for consent shall be in writing, accompanied by an
executed copy of the assignment or subletting agreement. entered into
between the Tenant and the proposed assignee or subtenant, and shall
include such information as the nature of the business which the proposed
assignee or sub tenant curies on, the use to which it intends to put the
Demised Premises and such information as to its financial responsibility as
the Landlord may reasonably require.
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(4) Any consent granted by the Landlord shall be conditional upon the
assignee, sublessee or occupant executing a written agreement directly with
the Landlord agreeing to be bound by all the terms of this Lease as if the
assignee, sublessee or occupant had originally executed this Lease as
Tenant, Tenant shall pay Landlords legal fees, incurred relating to said
assignment.
(5) Any assignment is conditional on the Landlord being entitled as
Additional Rent to any excess of rent paid by the Assignee or subtenant
over the rent specified to be paid by the Tenant in this Lease.
(6) Any consent given by the Landlord to any assignment or other
disposition of the Tenant's interest in this Lease or in the Premises shall
not relieve the Tenant from his obligations under this Lease, including the
obligation to pay Rent and Additional Rent as provided for herein.
(7) If the party originally entering into this Lease as Tenant, or any
party who subsequently becomes the Tenant by way of assignment or sublease
or otherwise as provided for in this Lease, is a corporation then:
(a) the Tenant shall not be entitled to deal with its authorized or
issued capital or that of an affiliated company in any way that
results in a change in the Abed voting control of the Tenant
unless the Landlord first consents in writing to the proposed
change which consent shall n be unreasonably withheld:
(b) if any change is made in the control of the Tenant corporation
without the written consent of the Landlord then the Landlord
shall be entitled to treat the Tenant being in default and to
exercise the remedies stipulated in paragraph 10 (2) of this
Lease and arty other remedies available in law;
(c) the Tenant agrees to make available to the Landlord or his
authorized representatives the corporate books and records of the
Tenant for inspection at reasonable times .
5. USE
(1) The Tenant shall occupy the Leased Premises throughout the term and the
Leased Premises shall be continuously, actively and diligently occupied,
used and operated, in a reputable and quality manner; for the business and
purpose of a business office. The Landlord does not warrant or covenant the
Tenant's "Use" of the premises. No change in use shall be permitted without
the express consent of the Landlord given in writing, which consent may be
arbitrarily withheld.
(2) The Tenant shall not do or permit to be done at the Premises anything
which may:
(a) constitute a nuisance;
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(b) cause damage to the Premises;
(c) cause injury or annoyance to occupants of neighboring premises;
(d) make void or avoidable any insurance upon the Premises;
(e) constitute a breach of any by-law, statute, order or regulation
of any municipal, provincial or other competent authority
relating to the Premises.
(3) Compliance with Laws - The Premises shall be used and occupied in a
safe, careful and proper manner so as not to contravene any preset or
future governmental or quasi-governmental laws in force or regulations or
orders. If due solely to Tenant's use of the Premises, improvements are
necessary to comply with any of the foregoing or with requirements of
insurance carriers, tenant shall pay the entire cost thereof.
6. REPAIR AND MAINTENANCE
(1) The Tenant covenants that during the term of this Lease and airy
renewal thereof the Tenant shall keep in good condition the Premises
including all alterations and additions made thereto, and shall, with or
without notice, promptly make all needed repairs and all necessary
replacements as would a prudent owner.
(2) The Tenant shall permit the Landlord or a person authorized by the
Landlord to enter the Premises to examine the condition thereof and view
the state of repair at reasonable times:
(a) and if upon such examination repairs are found to be necessary,
written notice of the repairs required shall be given to the
Tenant by or on behalf of the Landlord and the Tenant shall make
the necessary repairs within the reasonable time specified in the
notice;
(b) and if the Tenant refuses or neglects to keep the Premises in
good repair the Landlord may, but shall not be obliged to make
any necessary repairs, and shall be permitted to enter the
Premises, by himself, or his servants or agents, for the purpose
of effecting the repairs without being liable to the Tenant for
any loss, damage or inconvenience to the Tenant in connection
with the Landlord's entry and repairs;
(i) and if the Landlord makes repairs the Tenant shall pay the
cost of them immediately as Additional Rent.
(3) Upon the expiry of the Term or other determination of this Lease the
Tenant agrees peaceably to surrender the Premises, including airy
alterations or additions made thereto, to the Landlord in a state of good
repair.
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(4) The Tenant shall immediately give written notice to the Landlord or any
substantial damage that occurs to the Premises from any cause.
7. ALTERATIONS AND ADDITIONS
(1) If the Tenant, during the Term of this Lease or any renewal of it, tees
to make any alterations or additions to the Premises, including but not
limited to : erecting partitions, attaching equipment, and installing
necessary furnishings or additional equipment of the Tenant's business, the
Tenant may do so at his own expense, at any time and from time to time, if
the following conditions are met:
(a) before undertaking any alteration or addition the Tenant shall
submit w the Landlord a plan showing the proposed alterations or
additions and the Tenant chalk not proceed to make any alteration
or addition unless the Landlord has approved the plan, and the
Landlord shall not unreasonable or arbitrarily withhold his
approval;
(i) and items included in the plan which are regarded by the
Tenant as "Trade Fixtures: shall be designated as such on
the plan;
(b) any and all alterations or additions to the Premises made by the
Tenant must comply with all applicable building code standards
and by-laws of the municipality in which the Premises are
located.
(2) The Tenant shall be responsible for and shall pay the cost of airy
alterations, additions, installations or improvements that any governing
authority, municipal, provincial or otherwise, may require to be made in,
on or to the Premises.
(3) No sign, advertisement or notice shall be inscribed, painted or affixed
by the Tenant, or any other person on the Tenants' behalf, on airy part of
the inside or outside of the building in which the Premises are located
unless the sign, advertisement or notice has been approved in every respect
by the Landlord, which approval shall not be unreasonably withheld.
(4) All alterations anti additions to the premises made by or on behalf of
the Tenant, other than the Tenant's Trade Fixtures, shall immediately
become the property of the Landlord without compensation to the Tenant.
(5) The Tenant agrees, at his own expense and by whatever means may be
necessary, immediately to obtain the release or discharge of any lien that
may be registered against the Landlord's property in connection with airy
additions or alterations to the Premises mach by the Tenant or in
connection with any other activity of the Tenant.
(6) If the Tenant has complied with his obligations according to the
provisions of this Lease, the Tenant may remove xxxx Trade Fixtures at the
end of the Term or other termination of this Lease and the Tenant covenants
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that he will make good and repair or replace as necessary any damage caused
to the Premises by the removal of the Tenant's Trade Fixtures.
(7) Other than as provided in paragraph 7 (6) above, the Tenant shall not,
during the Term of the Lease or anytime thereafter xxxxx from the Premises
any Trade Fixtures or other of the Tenant except in the following
circumstances:
(a) the removal is in the ordinary course of business;
(b) 66 Trade Fixture has become unnecessary for the Tenant's business
or is being replaced by a new or similar Trade Fixture; or
(c) tire Landlord has concerned in writing to the removal;
(8) The Tenant shall not bring onto the Premises or any part of the
Premises any machinery, equipment or any other thing that might in the
opinion of the Landlord , by reason of its weight, size or use, damage the
Premiers or overload the floors of the Premises;
(a) and if the Premises are damaged or overloaded the Tenant shall
restore the Premises immediately or pay to the Landlord the cost
or restoring the Premises.
(9) Trade Futures, Personal Property end Improvements - Subject to Tenant's
rights under Article (6), after me expiration or other termination of the
Term all of the Tenant's trade fixtures, personal property and improvements
remaining in the Premises shall be deemed to conclusively to have been
abandoned by Tenant and may be appropriated, sold, destroyed or otherwise
disposed of by Landlord without notice or obligation to compensate Tenant
or to account therefor, and Tenant shall pay to Landlord on written demand
all costs incurred by Landlord in connection therewith.
(10) Alterations by Landlord - Landlord may from time to time:
(a) make repairs, replace, changes or additions to the structure,
systems, facilities and equipment in the Premises where necessary
to serve the Premises or other parts of the Building;
(b) make changes in or additions to any part of the Building not in
or forming part of the Premise; and
(c) change or alter the location of those areas of the Building from
time to time designated by Landlord for use during normal
business hers by Tenant in common with all tenants and other
persons in the Building but under exclusive control of Landlord,
provided that in doing so Landlord shall not disturb or interfere
with Tenant's use of the Premises and operation of its business
any more than is reasonably necessary in the circumstances and
shall repair any damage to the Premises caused thereby.
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(11) Access by Landlord - Tenant shall permit Landlord to enter the
Premises outside normal business hours, and during normal business hours
where such will not unreasonably disturb or interfere with Tenant's use of
the Premises and operation of its business, to examine, it, and show the
Premises to persons wishing to lease them, to provide services and make
repairs, replacements, changes or alterations as set out in this Lease, and
to take such steps as Landlord may deem necessary for the safety,
improvement or preservation of the Premises or the Building. Landlord shall
whenever possible consult with or give reasonable notice to Tenant prior to
such entry, but no such entry shall constitute an eviction or entitle
Tenant to any abatement of Rent.
(12) Energy, Conservation and Security Policies - For the purpose of this
Lease only, Landlord shall be deemed to have observed and performed the
terms and conditions to be performed by Landlord under this Lease,
including those relating to the provision of utilities and services, if in
so doing it acts in accordance with a directive, policy or request of a
governmental or quasi-governmental authority serving the public interest in
the fields of energy conservation or security.
(13) Signage - The Tenant shall have the right to install signs within the
premises to identify the Tenant's business. The Landlord shall add the
Tenant name on the building directory.
8. INSURANCE
(1) During the Term of this Lease and any renewal thereof the Landlord may
maintain, at the Tenant's costs with respect to the Premises, insurance
coverage insuring against:
(a) loss or damage by fire, lightning, storm and other perils that
may cause damage toy the Premises or the property of the Landlord
in which the Premises are located as are commonly provided for as
extended perils coverage or as may be reasonable required and
obtained by the Landlord;
(i) aril the insurance policy shall provide coverage on a
replacement cost basis in an amount sufficient to cover the
cost of all signs and leasehold improvements;
(b) liability for bodily injury or death or properly damage sustained
by third parties up to such limits as the Landlord in his some
discretion deem advisable but in no event less than
$1,000,000.00;
(c) rental income protection insurance with respect to fire and other
perils to the extent of one year's Rent payable under this Lease;
(i) but such insurance and any payment of the proceeds thereof
to the Landlord shall not relieve the Tenant of its
obligations to continue to pay rent during any period of
rebuilding, replacement, repairing or restoration of the
Premises except as provided in Section 9.
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(2) The Tenant covenants to keep the Landlord indemnified against all
claims and demands whatsoever by any person, whether in respect of damage
to person or property, arising out of or occasioned by the maintenance, use
or occupancy of the Premises or the subletting or assignment of same or any
part thereof. Aid the Tenant further covenants to indemnify the Landlord
with respect to any encumbrance on or damage to the Premises occasioned by
or arising from the act, default, or negligence or the Tenant, its offers,
agents, servants, employees, contractors, customers, invitees or licensees:
(a) and the Tenant agrees that the foregoing indemnity shall survive
the termination of this Lease notwithstanding any provisions of
this Lease to the contrary.
(3) The Tenant shall carry insurance in his own name to provide coverage
with respect to the risk or business interruption to an extent sufficient
to allow the Tenant to meet his ongoing obligations to the Landlord and to
protect the tenant against loss of revenues.
(4) The Tenant shall carry insurance in his own name insuring against the
risk of damage to the Tenant's property within the Premises caused by fire
or other perils and the policy shall provide for coverage on a replacement
costs basis to protect the Tenant's stock-in-trade, equipment, Trade
Fixtures, decorations and improvements.
(5) The Tenant shall carry public liability insurance of $2,000,000.00 and
property damage insurance in which policy the Landlord shall be a named
insured and the policy shall include a cross-liability endorsement;
(a) and the Tenant shall provide the Landlord with a copy of the
policy of insurance.
9. DAMAGE TO THE PREMISES
(1) If the Premises or the building in which the Premises are located, are
damaged or destroyed, in whole or in part, by fire or other peril, then the
following provisions shall apply:
(a) if the damage or destruction renders the Premises unfit for
occupancy and impossible to repair 'or rebuild using reasonable
diligence within 120 clear days from the happening of such damage
or destruction occurred, and the Tenant shall immediately
surrender the remainder of the Term and give possession of the
Premises to the Landlord, and the Rent from the time of the
surrender shall xxxxx;
(b) If the Premises can with reasonable diligence be repaired and
rendered fit for occupancy within 120 days from the happening of
the damage or destruction, but the damage renders the Premises
wholly unfit for occupancy, then the rent hereby reserved shall
not accrue after the day that such damage occurred, or while the
process of repair is going on, and the Landlord shall repair the
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Premises with all reasonable speed and the Tenant's obligation to
pay Rent shall resume immediately after the necessary repairs
have been completed.
If lease Premises can be repaired within 120 days as aforesaid,
but the damage is such that the lease Premises are capable of
being partially used, then until such damage has been repaired,
the Tenant shall continue in possession and the Rend shall xxxxx
proportionate.
(2) Any question as to the degree of damage or destruction or the period of
time required to repair or rebuild shall be determined by an architect
retained by Landlord.
(3) Apart from the provisions of Section 9(1) there shall be no abatement
from or reduction of the Rent payable by die Tenant, nor shall The Tenant
be entitled to claim against the Landlord for any damages, general or
special, caused by fire, water, sprinkler systems, partial or temporary
failure or stoppage or services or utilities which the Landlord is obliged
to provide according to this Lease, from any cause whatsoever.
(4) Major Damage to Building - If all or a substantial part (whether or not
including the Premises) of the Building is rendered untenantable by damage
from fire or other casualty to such a material extent that in the
reasonable opinion of Landlord the Building must be totally or partially
demolished, whether or not to be reconstructed in whole or part, Landlord
may elect to terminate this Lease as of the date of notice if the Premises
are unaffected by such casualty by written notice delivered to Tenant not
more than 60 days after the date of such casualty.
(5) Limitation on Landlord's Liability - Except as specifically provided in
Section 9(b), there shall be no reduction of Rent and Landlord shall have
no liability w Tenant by reason of any injury or interference with Tenant's
business or property arising from fire or other casualty, howsoever or from
the making of any repairs resulting therefrom in or to any portion of the
Building or the Premises. Notwithstanding anything contained herein, Rent
payable by Tenant hereunder shall not be abated if the damage is caused by
any act or omission of Tenant, its agents, servants, employees or any other
person entering upon the Premises under express or implied invitation of
the Tenant.
10. ACTS OF DEFAULT AND LANDLORD'S REMEDIES
(1) An Act of Default has occurred when:
(a) The Tenant has failed to pay Minimum Rent or Additional Rent or
any other monies for a period of 5 Consecutive days, regardless
of whether demand for payment has bin made or not ;
(b) The Tenant has breached his covenants or failed to perform any of
his obligations under this Lease; and
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(i) the Landlord has given notice specifying the nature of the
default and the steps required to correct it; and
(ii) the Tenant has failed to correct the default within a
reasonable period of time as required by the notice;
(c) the Tenant has;
(i) become bankrupt or insolvent or made an assignment for the
benefit of the Creditors;
(ii) had its property seized or attached in satisfaction of a
judgment and such judgement has not been set aside or
satisfied within 15 days thereof;
(iii) had a receiver appointed;
(iv) committed any act of neglected to do anything with the
result that a Construction Lien or other encumbrance is
registered against the Landlord's property which is not
discharged within 10 days after written notice to this
effect from the landlord;
(v) without the consent of the Landlord, made or entered into an
agreement to make a sale of its assets to which the Bulk
Sales Act applies unless the assets are being replaced by
assets of a similar value;
(vi) taken action if the Tenant is a corporation, with a view to
winding up, dissolution or liquidation;
(d) any insurance policy is cancelled by reason or the use or
occupation of the Premises, or by reason or non-payment of
premiums and is not corrected within 5 days after written notice
thereof from the Landlord;
(e) The Premises;
(i) become vacant or remain unoccupied for a period of 30
consecutive days; or
(ii) are not open for business on more than thirty (30) business
days in any twelve (12) month period or on any twelve (12)
consecutive business days; or
(iii) are used by any other person or persons, of for any other
purpose than as provided for in this Lease without the
written consent of the Landlord.
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(2) When an Act of Default on the part of the Tenant has occurred:
(a) the current month's rent together with next three month's rent
shall become due and payable immediately; and
(b) the Landlord shall have the right to terminate this Lease and to
re-enter the Premises and deal with them as he may choose.
(3) If, because and Act of Default has occurred, the Landlord exercises his
right to terminate this Lease and re-enter the Premises prior to the end of
the Term, the Tenant shall nevertheless be liable for payment of Rent and
all other amounts payable by the Tenant in accordance with the provisions
of this Lease until the Landlord has re-let the Premises or otherwise dealt
with the Premises in such manner that the cessation of payments by the
Tenant will not result in loss to the Landlord:
(a) and the Tenant agrees to be liable to the Landlord, until the end
of the Terns of this Lease for payment of any difference between
the amount of Rent hereby agreed to be paid for the Term hereby
granted and the Rent any new tenant pays to the Landlord.
(4) The Tenant covenants that notwithstanding any present or future Act of
the Legislature of the Province of Ontario, the personal property of the
Tenant during the term of this Lease shall not be exempt from levy by
distress for Rent in arrears;
(a) and the Tenant acknowledges that it is upon the express
understanding that there should be no such exemption that this
Lease is entered into, and by executing this Lease:
(i) the Tenant waives the benefit of any such legislative
provisions which might otherwise be available to the Tenant
in the absence of this agreement; and
(ii) The Tenant agrees that the Landlord may plead this covenant
as an estoppel against the Tenant if an action is brought to
test the Landlord's right to levy distress against the
Tenants property.
(5) If, when an Act of Default has occurred, the Landlord chooses not to
terminate the Lease and re-enter the Premises, the Landlord shall have the
right to take any and all necessary steps to rectify any or all Acts of
Default of the Tenant and to charge the costs of such rectification to the
Tenant and to recover the costs as Rent.
(6) If, when an Act of Default has occurred, the Landlord chooses w waive
his right to exercise the remedies available to him under this Lease or at
law the waiver shall not constitute condonation of the Act of Default, nor
shall the waiver be pleaded as an estoppel against the landlord to prevent
his exercising this remedies with respect to a subsequent Act of Default:
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(a) No covenant, term, or condition of this Lease shall be deemed to
have been waived by the Landlord unless the waiver is in writing
and signed by the Landlord.
11. TERMINATION UPON NOTICE AND AT END OF TERM
(1) If the Landlord desires at any time to remodel of demolish the Building
or any part thereof, to an extent that renders continued possession by the
Tenant impracticable, the Tenant shall upon receiving 180 clear days
written notice from the Landlord surrender this lease, including any
unexpired remainder of the Term and vacate the Premises and give the
Landlord possession.
(2) The Tenant agrees to permit the Landlord during the last three months
of the Term of this Lease to display "For Rent" or "For Sate" signs or both
at the Premises and to show the Premises to prospective new tenants or
purchasers and to permit anyone having written authority of the Landlord to
view the Premises at reasonable hours.
(3) If the Tenant remains in possession of the Premises after termination
of this Lease as aforesaid and if the Landlord then accepts rent for the
Premises from the Tenant, it is agreed that such overholding by the Tenant
and acceptance of Rent by the Landlord shall create a monthly tenancy only
at 150 % of the Minimum Rent but the tenancy shall remain subject to all
the terms and conditions of this Lease except those regarding the Term.
(4) Eminent Domain
--------------
Taking of Premises - If during the Term all of the Premises shall be taken
for airy public or quasi-public use under any statute or by right of eminent
domain, or purchased under threat of such taking, this Lease shall automatically
terminate on the date on which the condemning authority takes possession of the
Premises (hereinafter called the "date of such taking").
Partial Taking of Building - If during the Term only part of the Building
is taken or purchased as set out in Section 11 (5), then:
(a) if in the reasonable opinion of Landlord substantial alteration
or reconstruction of the Building is necessary or desirable as a
result thereof, whether or not the Premises are or may be affect,
Landlord shall have the right to terminate this Lease by giving
the Tenant at least 90 days written notice thereof;
(b) if more than one-third of the number of square feet in die
Premises is included in such taking of purchase, landlord shall
have the eight to terminate this Lease by giving the Tenant at
least 90 days' written notice thereof.
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If the Landlord exercises its right of termination hereunder, the Lease shall
terminate on the date stated in the notice, provided, however, that no
termination pursuant to notice hereunder may occur later than 60 days after the
date of such taking.
Surrender - On any such date of termination under said Section, Tenant
shall immediately surrender to Landlord the Premises and all interests therein
under this Lease. Landlord may re-enter and take possession of the Premises arid
remove Tenant therefrom, and the Rent shall xxxxx on the date of termination,
except that if the date of such taking differs from the date of termination,
Rent shall xxxxx on the former date in respect of the portion taken. After such
termination, and on notice from Landlord stating the Rent then owing, Tenant
shall forthwith pay the Landlord such Rent.
Partial Taking of Premises - If any portion of the Premises (but less than
the whole thereof) is so taken, affil no rights of termination herein conferred
are timely exercised, the Term of this Lease shall expire with respect to the
portion so taken on the date of such taking. In such event the Rent payable with
respect to the remainder not so taken shall be adjust pro rata by Landlord in
order to account for the resulting reduction in the number of square feet in the
Premises.
Awards - Upon any such taking or purchase, Landlord shall be entitled to
receive and retain the entire awards consideration for the affected lands and
improvements, and Tenant shall not have nor advance claim against Landlord for
the value of its property or its leasehold estate or the unexpired Term of the
Lease, or for costs of removal or relocation, or business interruption expense
or any other damages arising out of such taking or purchase.
12. LANDLORD'S WORK
Within 7 business days of the commencement date the Landlord shall paint and
carpet the Premises to Tenant's choice of colour from Building standard samples
and Landlord agrees to effect erect drywall partitions as outlined in Schedule A
of the Offer to Lease. .
13. ACKNOWLEDGEMENT BY TENANT
The Tenant agrees that he will at any time or times during the Term, upon
being given at least forty-eight (48) hours prior written notice, execute and
deliver to the Landlord a statement in writing certifying:
(a) that this Lease is unmodified and is in full force and effect (or
if modified stating the modifications and confirming that the
Lease is in full force and effect as modified);
(b) the amount of Rent being paid;
(c) the dates to which Rent has been paid;
(d) other charges payable under this Lease which have been paid;
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(e) particulars of any prepayment of Rent or security deposits; and
(f) particulars of any subtenancies.
14. SUBORDINATION AND POSTPONEMENT
(1) This Lease and all the rights of the Tenant under this Lease are
subject and subordinate to any and all charges against the land, buildings
or improvements of which the Premises form part, whether the charge is in
the nature of a tee, trust deed, lien or any other form of charge arising
from, the financing or re-financing, including extensions or renewals, or
the Landlord's interest in the property.
(2) Upon request of the Landlord the Tenant will execute any form required
to subordinate this Lease and the Tenant's rights to any such charge, and
will, if required, acorn to the holder of the charge.
(3) No subordination by the Tenant shall have the effect of permitting the
holder of airy charge to disturb the occupation and possession of the
Premises by the Tenant as long as the Tenant performs his obligations under
this Lease.
15. RULES AND REGULATIONS
The Tenant agrees on behalf of itself and all persons entering the Premises with
the Tenant's authority or permission to abide by such reasonable rules and
regulations that form part of this Lease and as the Landlord may make form time
to time.
16. NOTICE
(1) Any notice required or permitted to be given by one party to the other
pursuant to the terms of this Lease may be given
To the Landlord at: 000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxx
XXX 0X0
Tenant at the Premises
(2) The above addresses may be changed at arty time by giving ten (10) days
written notice.
(3) Any notice given by one party to the other in accordance with the
provisions of this Lease shall be deemed conclusively to have been received
on the date delivered if the notice is served personally or on the fourth
(4th) business day following the date of mailing by pre-paid registered
mail, if so mailed. During any interruption, threatened interruption or
substantial delay in postal service, such notice shall be delivered
addressed as aforesaid and not mailed.
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17. REGISTRATION
The Tenant shall not at any time register notice of or a copy of this Lease on
title to the property of which the premises form part.
18. TRANSFERS BY LANDLORD
(1) Sale, Conveyance and Assignment - Nothing in this Lease shall restrict
the right of Landlord to sell, convey assign or otherwise deal with the
Building, subject only to the rights of Tenant under this Lease.
(2) Effect of Sale, Conveyance or Assignment - A sale, conveyance or
assignment of the Building shall operate to release Landlord from liability
from and after the effective date thereof upon all of the covenants, terms
and editions of this Lease, express or implied, except as such may relate
to the period prior to such effective date, and Tenant shall thereafter
look solely to Landlord's successor in interest is and to this Lease. This
Lease shall not be affected by air such sale, conveyance or assignment, and
Tenant shall attorn to Landlord's successor in interest thereunder.
(3) Subordination - This Lease is and shall be subject and subordinate in
all respects to any and all mortgages and deeds of trust now or hereafter
placed on the Building of Land, and to all renewals, modifications,
consolidation, replacements and extensions thereof.
(4) Attornment - If the interest of Landlord is transferral to any person
(hereinafter called "Purchaser") by reason of foreclosure or other
proceedings for enforcement of any such mortgage or deed of trust, or by
delivery of a deed in lieu of such foreclosure or other proceedings, Tenant
shall immediately and automatically attorn to Purchaser.
(5) Norxlisturbance - No attornment by Tent under Section 4 shall be
effective unless, before the date of transfer to Purchaser, Purchaser
delivers to Tenant a written undertaking, binding upon Purchaser and
enforceable by and for the benefit of Tenant under applicable law, that
this Lease and Tenant's rights hereunder shall continue undisturbed while
Tenant is not in default despite such enforcement proceedings and transfer.
(6) Effect of Atturmnent - Upon auornment under Section 4, this Lease shall
continue in full force and effect as a direct lease between Purchaser and
Tenant, upon all of the same terms, coalitions and covenants as are set
forth in this Lease except that, after such attornment, Purchaser shall not
be:
(a) liable for any act or omission of Landlord, or
(b) subject to nay offsets or defenses which Tenant might have
against Landlord, or
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(c) bound by any prepayment by Tenant or more than one month's
installment of Rent, or by any previous modification of this
Lease, unless such prepayment or modification shall have been
approved in writing by Purchaser or any predecessor in interest
except Landlord.
(7) Execution of Instruments - The subordination and attornment provisions
of this Section 18.00 shall be self-operating and except as set out in
Section 18.05 no further instrument shall be required. Nevertheless Tenant,
on request by and without costs to Landlord or any successor in interest,
shall execute and deliver any and all instruments further evidencing such
subordination and (where applicable hereunder) attornment.
19. INTERPRETATION
(1) The words importing the singular number only shall include the plural,
aril 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.
(2) Unless the context otherwise requires, the word "Landlord" and the word
"Tenant" wherever used herein shall be construed to include the executors,
administrators, successors and assigns of the Landlord and Tenant,
respectively.
(3) When there are two or more Tenants bound by the same covenants herein
contained, their obligations shall be joint and several.
(4) Authorities for Action - Landlord may act in matter provided for herein
by its Property Manager oral any other person who shall from time to time
be designated by Landlord by notice to Tenant. Tenant shall designate is
writing one or more persons to act on its behalf in any matter provided for
therein and may from time to time change, by notice to the Landlord, such
designation. In the absence of any such designation, the person or persons
executing this Lease for Tenant shall be deemed to be authorized to act on
behalf of Tenant in any matter provided for herein.
(5) Entire Agreement - The Lease contains the entire agreement between the
parties hereto with respect to the Premises and there are no covenants,
representations, agreements, warranties or conditions in any way relating
to the subject matter of this Lease, whether expressed or implied,
collateral or otherwise, either oral or written. Tenant acknowledges aril
agreed that it has not relied upon any statement, representation, agreement
or warranty , whether by the Landlord, arty agent, their respective
directors, officers, employees or rental agents or by any others, except
such as are set out in this Lease. The term "Lease" in this Article shall
be deemed to include any Agreement to Lease.
(6) Name of Building - Landlord shall have the right, after 30 days notice
to the Tenant, to change the name, number or designation of the Building,
during the term without liability to Tenant.
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(7) Concern Not to be Unreasonably Withheld - Tenant's sole remedy if
Landlord unreasonably withholds or delays consent or approval shall be an
action for specific performance, and Landlord shall not be liable for
damages. If either party withholds content or approval, such party shall on
written request deliver to the other party a written statement giving the
reasons therefor.
In Witness of the foregoing covenants the Landlord and the Tenant have executed
this Lease.
St. Xxxxxxx Xxxxxx Inc.
---------------------------------------
Landlord
116630 ONT 0 INC.
---------------------------------------
Tenant
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SCHEDULE OF RIDES AND RERLILATIONS FORMNG GIRT OF THIS TAM
----------------------------------------------------------
The Tenant shall observe the following Rules and Regulations (as amended,
modified or supplemented from time to time by the landlord as provided in this
Lease):
1. The sidewalk, entrances, elevators, stairways and corridors of the
building shall not be obstructed or used by the Tenant, his agents, servants,
contractors, for employees for any purpose other than access to and from the
Premises.
2. The floors sky-lights and windows that reflect or admit light into
passageways or into any place in the building shall not be covered or obstructed
by the Tenant, and now awnings shall be put over any window.
3. The toilets, sinks, dram washrooms and other water apparatus shall not
be used for any purpose other than those for which they were constructed, and no
sweepings, nebbish, rags, ashes or other substances, such as chemicals,
solvents, noxious liquids or pollutants shall be thrown therein, and any damage
resulting to than from misuse shall be borne by the Tenant by whom or by whose
employees, ages, servants, contractors or invitees the damage was caused.
4. In the event that the Landlord provides and installs a Public Directory
Board inside the 8. the Tenant's name shall be placed on the said Board at the
expense of the Tenant.
5. The Tenant shall not perform any acts or carry on any activity which may
damage the Premises or the common areas or be a nuisance to any other tenant.
6. No animals or birds shall be brought into the building or kept on the
Premises.
7. The Tenant shall not xxxx, drill into, bore or cut or in any way damage
or deface the walls, ceilings or floors of the Premises. No wires, pipes, or
conduits shall be installed in the Premises without prior written approval of
the Landlord. No broadloom or carpeting shall be affixed to the Premises by
means of a non-soluble adhesive or similar product.
8. No one shall use the Premises for sleeping apartments or residential
purposes, for the storage of personal effects or auricles other than those
required for business purposes, or for any illegal purpose.
9. The Tenant shall not use or permit the use of any objectionable
advertising medium such as, without limitation,, loudspeakers, public address
systems sound amplifiers, radio, broadcast or television apparatus within the
building which is in any manner audible or visible outside of the Premises.
10. The Tenant must observe strict care not to allow windows to remain open
so as to admit rain or snow, or so as to interfere with the hearing of the
building. The Tenant neglecting this rule will be responsible for any damage
caused to the property of other tenants or to the property of the Landlord, by
such carelessness. The Tenant, when closing the Premises, shall close all
windows and lock all doors.
11. The Tenant shall not without the express written consent of the
Landlord, place any additional locks upon any doors of the Premises and shall
not permit any duplicate keys to be made therefore; but shall use only
additional keys obtained from the Landlord, at the expense of the Tenant, and
shall surrender to the Landlord on the termination of the Lease all keys of the
Premises.
12. No inflammable oils or other inflammable, toxic, dangerous or explosive
materials shall be kept or permitted to be kept in or on the Premises.
13. No bicycles or other vehicles shall be brought within the Premises or
upon the Landlord's property, including any lane or courtyard, agreed in
writing.
14. Nothing hall be placed on the outside of windows or projections of the
Premises. No air-conditioning equipment shall be placed at the windows of the
Premises without the consent in writing of the Landlord.
15. The moving of all heavy equipment and office equipment or furniture
shall occur only between 6:00 p.m. and 8:00 a.m. or any other time xxxx to by
the Landlord and the persons employed to move the same in and out of the
building must ix acceptable to the Landlord. Safes and other heavy equipment
shall be moved through the Premises and common areas only upon steel bearing
plates. No deliveries requiring the use of an elevator for freight purposes will
be received into the building or carried in the elevators, except during hours
approved by the Landlord.
16. The Tenant shall first obtain in writing the consent of the Landlord,
not to be unreasonably withheld, to any alteration or modification ^i system in
the Premises and all such alterations and modifications shall be completed at
the Tenant's expense by an electrical ratabably acceptable to the landlord.
17. The Tenant shall first obtain in writing the consent of the Landlord to
the placement by the Tenant of any garbage containers or receptacles outside the
Premises or building.
18. The Tenant shall not install or erect on or about the Premises
television antennae, communications towers, satellite dishes or other such
apparatus.
19. The Landlord shall have the right to matte such other and further
reasonable rules and regulations and to alter, amend or cancel all rules and
regulations as in its judges may from time to time be needed for the safety,
care and cleanliness of the building and for the preservation of good order
therein and the same shall be kept and observed by the Tenant, his employees,
agents, servants, contractors or ice. The landlord may from time to time waive
any of such rules and regulations as applied to particular tenants and is not
liable to the Tenant for breaches thereof by other tenants.
DATED AUGUST 1998
BETWEEN:
ST. XXXXXXX XXXXXX INC.
LANDLORD
-------------------
AND
1164330 ONTARIO INC.
TENANT
-------------------
COMMERCIAL LEASE
