EXHIBIT 10-a-12
MULTI TENANT INDUSTRIAL BUILDING
SHORT FORM
XXXXX TRADE & INDUSTRIAL PARK INC.
LANDLORD
- and -
ACE HARDWARE CANADA LIMITED
TENANT
L E A S E
TABLE OF CONTENTS
Article
Article I
1.0 LEASE SUMMARY
Article II
2.0 DEFINITIONS
Article III
3.0 INTENT OF LEASE
3.1 Net Lease
Article IV
4.0 LEASE OF PREMISES
4.1 Premises
4.2 Term
4.3 Use Prior to Commencement Date
4.4 Acceptance of Premises
4.5 Licence to Use Common Facilities
4.6 Quiet Enjoyment
4.7 Fixturing of Premises
Article V
5.0 RENT
5.1 Tenant to Pay
5.2 Basic Rent
5.3 Additional Rent
5.4 Deemed Rent and Allocation
5.5 Monthly Payments of Additional Rent
Article VI
6.0 TAXES
6.1 Taxes Payable by Tenant
6.2 Determination of Tenant's Taxes
6.3 Business Taxes
6.4 Tax Bills and Assessment Notices
6.5 Contest of Realty Taxes
Article VII
7.0 OPERATION OF PROJECT
7.1 Operation of Project by Landlord
7.2 Tenant's Payment of Operating Costs
7.3 Adjustments to Operating Costs
Article VIII
8.0 USE OF PREMISES
8.1 Use of Premises
8.2 Conduct of Business
8.3 Tenant's Fixtures
8.4 Signs
8.5 Waste Removal
8.6 Pest Control
8.7 Waste and Nuisance
8.8 Compliance with Law
8.9 Deliveries
8.10 Prohibited Uses
Article IX
9.0 SERVICES AND UTILITIES
9.1 Utilities
9.2 Heating and Air-Conditioning
9.3 Non-Liability of Landlord
9.4 Landlord's Suspension of Utilities
9.5 Landlord's Services
9.6 Landlord's Charges for Services
Article X
10.0 MAINTENANCE, REPAIRS AND ALTERATIONS
10.1 Maintenance and Repairs of Premises
10.2 Approval of Repairs and Alterations
10.3 Repair According to Landlord's Notice
10.4 Notice by Tenant
10.5 Ownership of Leasehold Improvements
10.6 Construction Liens
10.7 Landlord's Repairs
Article XI
11.0 END OF TERM
11.1 Vacating of Possession
11.2 Removal of Trade Fixtures
11.3 Removal of Leasehold Improvements
11.4 Overholding by Tenant
Article XII
12.0 DAMAGE AND DESTRUCTION
12.1 Insured Damage to Premises
12.2 Uninsured Damage and Last Two Years
12.3 Damage to Project
12.4 Restoration of Premises or Project
12.5 Determination of Matters
Article XIII
13.0 INSURANCE AND INDEMNITY
13.1 Landlord's Insurance
13.2 Tenant's Effect on Other Insurance
13.3 Tenant's Insurance
13.4 Landlord's Right to Place Tenant's Insurance
13.5 Landlord's Non-Liability
13.6 Indemnity of Landlord
13.7 Landlord's Employees and Agents
Article XIV
14.0 ASSIGNMENT, SUBLETTING AND CHANGE OF CONTROL
14.1 Consent Required
14.2 Obtaining Consent
14.3 Landlord's Option
14.4 Terms of Consent
14.5 Effect of Transfer
14.6 No Advertising of Premises
14.7 Mortgage of Lease
14.8 Corporate Tenant
14.9 Assignment by Landlord
Article XV
15.0 STATUS AND SUBORDINATION OF LEASE
15.1 Status Statement
15.2 Subordination and Attornment
15.3 Tenant's Failure to Comply
15.4 Registration
Article XVI
16.0 DEFAULT AND REMEDIES
16.1 Default and Remedies
16.2 Interest
16.3 Costs
16.4 Distress and Tenant's Property
16.5 Security Deposit
16.6 Remedies to Subsist
16.7 Impossibility of Performance
Article XVII
17.0 CONTROL OF PROJECT
17.1 Landlord's Control
17.2 Alterations of the Project
17.3 Use of Common Facilities
17.4 Rules and Regulations
17.5 Access to Premises
17.6 Expropriation
17.7 Development of Project
17.8 Landlord's Consent
Article XVIII
18.0 MISCELLANEOUS
18.2 Complete Agreement
18.3 Time of the Essence
18.4 Applicable Law
18.5 Severability
18.6 Section Numbers and Headings
18.7 Interpretation
18.8 Successors
Article XIX
19.0 SPECIAL PROVISIONS
19.1 Conditions to Tenant's Rights
19.2 Renewal Option
19.3 Environmental Provisions
19.4 Right of First Refusal
19.5 Condition of Premises
19.6 Building Codes
19.7 Environmental Representation
19.8 Net Rent Free Period
19.9 Exterior Use of Premises
19.10 Non-Disturbance Agreement
19.11 Landlord's Work
19.12 Early Termination
19.13 Office Space
19.14 Close Down Period
19.15 Commissions
19.16 Mediation/Arbitration
Schedules
"A" Legal Description of Project
"B" Outline Plan of Premises
"C" Tenant Alterations
Appendix "A" Guaranty Agreement
Multi Tenant Industrial Building
Short Form
THIS LEASE dated the 31st day of October, 0000
X X X X X X N :
XXXXX TRADE & INDUSTRIAL PARK INC.
(hereinafter called "Landlord")
OF THE FIRST PART
- and -
ACE HARDWARE CANADA LIMITED
(hereinafter called "Tenant")
OF THE SECOND PART
ARTICLE I.0 LEASE SUMMARY
Lease Summary
The following is a summary of some of the basic terms of
this Lease, which are elaborated upon in the balance of this Lease.
This section 1.1 is for convenience and if a conflict occurs
between the provisions of this section 1.1 and any other provisions
of this Lease, the latter shall govern.
Premises: A portion, as shown cross hatched in heavy
black on the sketch annexed hereto as Schedule "B" (the "Industrial
Space"), of the industrial building known as Building #2;
Term: Ten (10 ) years four (4) months and fifteen
(15) days;
Commencement Date: November 15, 1995;
Expiry Date: March 31, 2006;
Basic Rent (also referred to as "Net Rent"): The Net
Rent payable during the Term based on 284,000 square feet shall be
as follows:
Year Rate/Square Foot Rate/Annum Rate/Month
1 REDACTED
2
3
4
5
6
7
8
9
10
All rates and funds are in Canadian Dollars.
Rentable Area of Premises: 284,000 square feet of Industrial Space,
subject in each case to confirmation of the actual Rentable Area
in accordance with section 2.21.
In addition to the aforementioned space (284,000 square feet) the
Tenant shall utilize an additional area of up to 70,000 square feet
on an "as is" basis located on the structural mezzanine level
directly over a portion of the premises. There shall be no net
rent for the mezzanine space. Should any common area maintenance
charges become applicable during the term or any extensions
thereof, the Tenant agrees to pay half of the charge for the
mezzanine. Should any tax charges become applicable during the
term or any extensions thereof, the Tenant agrees to pay said
charges for the mezzanine;
Deposits:
(i) Prepaid Rent: Ninety-four thousand six hundred
sixty-six dollars and sixty-six cents ($94,666.66),
to be applied against the first two monthly payments
of Net Rent;
(ii) Security Deposit: Nil;
Use of Premises: Warehousing, outside storage,
distribution and associated offices;
Address for Service of Notice on Tenant or Guarantor, if any:
at the Premises;
with a copy to: Real Estate Department
Ace Hardware Corporation
Ace Hardware Corporate Offices
0000 Xxxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000
Address for Service of Notice on Landlord:
Xxxx 00
0000 Xxxxxxx 0
Xxxxxxx, Xxxxxxx
X0X 0X0
Special Provisions;
See Article XIX.
ARTICLE II.0 DEFINITIONS
Definitions
Where used in this Lease, the following words or phrases
shall have the meanings set forth in the balance of this Article.
"Additional Rent" shall have the meaning given to it in
section 5.3.
"Architect" means a professionally accredited architect,
engineer, surveyor or other qualified person appointed by Landlord
from time to time.
"Basic Rent" shall have the meaning given to it in
section 5.2.
"Building" means the industrial building in which the
Leased Premises are situated.
"Business Hours" means 24 hours per day, seven days per
week, subject to applicable Laws.
"Commencement Date" shall have the meaning given to it in
section 1.1.
"Common Facilities" means the facilities, areas, lands,
systems, improvements, fixtures and equipment which serve or
benefit other Leaseable Areas of the Project in addition to the
Premises, including without limitation roadways, driveways and
walkways, whether or not such Common Facilities are located within
the Project, and to the extent that the same are designated by
Landlord to be part of the Common Facilities from time to time.
"Fiscal Year" means the period used by Landlord for
fiscal purposes in respect of the Project. Unless otherwise
determined by Landlord by written notice to Tenant at any time or
times, each Fiscal Year shall be a calendar year. In the event of
a change in the Fiscal Year, or with respect of a partial Fiscal
Year at the beginning or end of the Term, all appropriate
adjustments resulting from a Fiscal Year being shorter or longer
than twelve (12) months shall be made.
"Landlord's Work" means the leasehold improvements which
Landlord is required, by this Lease, to make to the Premises on or
after the Commencement Date.
"Lands" means the lands included in the Premises.
"Laws" means all statutes, regulations, by-laws, orders,
rules, requirements and directions of all governmental authorities
having jurisdiction.
"Lease Year" means each consecutive period of three
hundred and sixty-five (365) days (or three hundred and sixty-six
(366) days in the case of a Lease Year which includes the month of
February in a leap year), the first Lease Year commencing on the
Commencement Date and ending on the day before the anniversary of
the Commencement Date (unless the Commencement Date is not the
first day of a calendar month, in which case the first Lease Year
shall commence on the Commencement Date and end on the day before
the anniversary of the first day of the first full month of the
Term), and each successive Lease Year commencing on the
anniversary of the first day of the first full month of the Term.
"Leasable Areas" means all areas and spaces of the
Project to the extent designated or intended from time to time by
Landlord to be leased to tenants, whether leased or not.
"Operating Costs" means the aggregate of all expenses and
costs of every kind for each fiscal period designated by Landlord,
as determined without duplication, incurred by or on behalf of
Landlord with respect to the operation, maintenance, repair,
replacement and management of the Common Facilities, and all
insurance relating to the Project, provided that if the Project is
less than 100% completed or occupied during the whole of any fiscal
period, the Tenant shall only be responsible for its share of the
actual Operating Costs, determined to be a fraction which has as
its numerator the Rentable Area of the Premises and which has as
its denominator the aggregate Rentable Area of Leasable Areas with
in the Project that have been leased during such fiscal period.
Without in any way limiting the generality of the foregoing,
Operating Costs shall include all cost in respect of the following:
all remuneration, including wages and fringe benefits,
of employees directly engaged in the operation, maintenance,
repair, replacement and management of the Common Facilities;
fire sprinkler maintenance and monitoring, if any, of the
Project, excluding the cost of such services charged directly to
tenants of the Project;
waste removal, landscaping, grass cutting, snow and ice
clearing and removal and salting in respect of the Common
Facilities;
all utilities supplied to the Project including, without
limitation, water, gas, electricity and sewer charges, excluding
those charged directly to tenants of the Project;
depreciation or amortization, over a period reasonably
determined by Landlord, of all costs, including capital costs, of
all improvements, furnishings, fixtures, equipment, machinery,
systems and facilities constructed or installed in or used in
connection with the Common Facilities, which by their nature
require periodic or substantial repair or replacement, or which
are constructed or installed or used primarily to reduce the cost
of other items included in Operating Costs, whether or not such
other costs are in fact reduced;
all insurance which Landlord obtains and the cost of any
deductible amounts payable by Landlord in respect of any insured
risk or claim;
policing, supervision, security and traffic control;
maintenance, repairs and replacements in respect of the
Common Facilities including structural maintenance, repairs and
replacements;
all costs in the nature of Operating Costs in respect of
areas, services and facilities outside the Project, such as
sidewalks and boulevards, off-site utilities and other service
connections, and in respect of areas, services and facilities
shared by users of the Project and users of any other property, to
the extent Landlord performs or contributes to the same as a result
of its ownership of the Project;
engineering, accounting, legal and other consulting and
professional services related to Common Facilities;
capital taxes payable by Landlord in respect of its
ownership or other interest in the Project, namely any tax or taxes
payable under any provincial or federal legislation based upon or
computed by reference to the paid-up capital or place of business
of Landlord as determined for the purposes of such tax or based
upon or computed by reference to the taxable capital employed
in Canada, or any similar tax levied, imposed or assessed in the
future in lieu thereof or in addition thereto by any governmental
authority;
(xii) costs of Landlord's administration in respect of
Realty Taxes, including, without limitation, all costs incurred by
Landlord in contesting any Realty Taxes or appealing any
assessments relating thereto, all costs and expenses of any kind
incurred by Landlord acting reasonably in obtaining or attempting
to obtain information in respect of, or a reduction or
reallocation of, Realty Taxes or any assessments related thereto,
and all legal, appraisal, administration and overhead costs;
(xiii) repair or replacement of the roof membrane of
Building 2, provided that the Tenant shall only be responsible for
its pro rata share of the cost thereof, determined by multiplying
the cost by a fraction, which has as its numerator the area of the
Leased Premises and which has as its denominator the aggregate
leaseable area on the ground floor of Building 2.
Operating Costs, however, shall be reduced by the
following to the extent actually received by Landlord:
proceeds of insurance and damages received by Landlord
from third parties to the extent of costs otherwise included in
Operating Costs;
contributions from parties other than tenants of the
Project, if any, in respect of Operating Costs, such as
contributions made by parties for sharing the use of Common
Facilities, but not including rent or fees charged directly for the
use of any Common Facilities such as parking fees;
amounts in the nature of Excess Costs, as defined in
subsection 7.3(a), to the extent received by Landlord from tenants
of the Project.
Operating Costs, however, shall exclude the following:
Realty Taxes;
expenses incurred by Landlord in respect of other tenants'
leasehold improvements;
capital costs except to the extent included as set forth
above;
depreciation, except to the extent included as set forth
above; and repairs or replacements to the extent that the cost of
the same is recovered by Landlord pursuant to original construction
warranties.
"Premises" shall have the meaning given to it in section 4.1.
"Project" means those lands described in Schedule "A"
hereto and all buildings, structures, improvements, equipment and
facilities of any kind erected or located thereon from time to
time, as such lands, buildings, structures, improvements, equipment
and facilities may be expanded, reduced or otherwise altered by
Landlord in its sole discretion from time to time.
"Proportionate Share" means a fraction which has as its
numerator the Rentable Area of the Premises and which has as its
denominator the aggregate Rentable Area of Leasable Areas within
the Project, subject to adjustment pursuant to subsection 7.3(b).
"Realty Taxes" means all taxes, rates, duties, levies,
fees, charges, local improvement rates, levies and assessments
whatever ("Taxes"), whether municipal, provincial, federal or
otherwise, which may be levied, assessed or charged against or in
respect of the Project or any part thereof or any fixtures,
equipment or improvements therein, or against Landlord in
respect of any of the same or in respect of any rental or other
compensation receivable by Landlord in respect of the same, and
including all Taxes which may be incurred by or imposed upon
Landlord or the Project in lieu of or in addition to the foregoing
including, without limitation, any Taxes on or in respect of real
property rents or receipts as such (as opposed to a tax on such
rents as part of the income of Landlord) business transfer taxes,
sales taxes, goods and services taxes, value-added taxes, and other
such taxes to the extent charged on or calculated on the basis of
Rent or any portion thereof, any Taxes based in whole or in part on
the value of the Project, any commercial concentration levy in
respect of the Project, and any licence fee measured by rents or
other charges payable by occupants of space in the Project.
"Rent" shall have the meaning given to it in section 5.1.
"Rentable Area" when applied to the Premises or any
Leaseable Areas means the area measured from the exterior face of
exterior walls and windows, from the exterior face of all walls and
windows dividing any Leaseable Areas from Common Facilities, and
from the centre line of all interior walls separating any Leaseable
Areas from other Leaseable Areas, all without deduction for any
space occupied by structures, columns, beams, conduits, ducts or
projections of any kind, and all without deduction for the
recessing of any entrance way or boundary wall from the lease line.
Every Rentable Area shall also include a pro rata share (defined
below) of all areas in the Building, such as, by way of example
only and without limitation, lobbies, corridors and entranceways,
which form part of the Common Facilities but are used exclusively
or primarily by certain tenants of the Project; the "pro rata
share" shall be the floor area of such area(s), measured as set out
above, and divided by the number of tenants whose premises are
served by such area(s). Every Rentable Area shall be as determined
by Landlord and, upon Tenant's request, Landlord shall, within a
reasonable time thereafter, provide Tenant with an Architect's
certificate as to the Rentable Area of the Premises, which
certificate shall be conclusive and binding upon the parties
hereto.
"Term" shall have the meaning given to it in section 4.2.
ARTICLE III.0 INTENT OF LEASE
Net Lease
It is the intent of the parties hereto that, except as
expressly herein set out, this Lease be absolutely net to Landlord,
and Landlord not be responsible for any expenses or obligations of
any kind whatsoever in respect of the Premises or the Project.
ARTICLE IV.0 LEASE OF PREMISES
Premises
Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord those premises ("Premises") being part of the
Building and shown cross hatched in heavy black on the plan
attached hereto as Schedule "B". The purpose of Schedule "B" is to
show the approximate location of the Premises and its contents are
not intended as a representation as to the precise size or
dimensions of the Premises or any other aspects of the Building or
the Project. Tenant reserves the right to install a security fence
around the perimeter of the shipping area on the east side of the
leased premises subject to the Tenant providing the Landlord with
a drawing for approval by the Landlord.
Term
The term of this Lease (the "Term") shall be for the period
described as the Term in section 1.1 hereof, commencing on the
Commencement Date and ending on the Expiry Date, both dates as
described in section 1.1.
Use Prior to Commencement Date
If Tenant uses or occupies the whole or any part of the
Premises in any way prior to the Commencement Date without entering
into a lease with Landlord in respect of such use or occupancy,
then during that period Tenant shall be a tenant of Landlord
subject to all the terms and conditions contained in this Lease,
provided that the inclusion of this section shall not be deemed to
authorize or permit Tenant to use or occupy the whole or any
portion of the Premises in any way prior to the Commencement Date.
Acceptance of Premises
Tenant accepts the Premises in the state and condition in
which they are received from Landlord and, except only to the
extent of any deficiency that may be found in the Landlord's Work
described in section 19.11, and any other deficiency set out in a
written list or videotape to be given by Tenant to Landlord within
thirty (30) days after Tenant takes possession of the Premises,
Tenant's entering into possession of the Premises shall be
conclusive evidence of the acceptance by Tenant of the condition
and state of repair of the Premises. It is understood and
acknowledged by Landlord that Tenant shall have no responsibility
or liability with respect to the repair or replacement of any of
the above referenced deficiencies, unless the same shall have been
repaired or replaced by Landlord.
Licence to Use Common Facilities
Subject to all other relevant provisions of this Lease,
Landlord grants to Tenant the non-exclusive licence during the Term
to use for their intended purposes, in common with others entitled
thereto, such portions of the Common Facilities as are reasonably
required for the use and occupancy of the Premises during Business
Hours and such other hours, if any, as the Common Facilities are
open for use, as determined by Landlord from time to time.
Quiet Enjoyment
Subject to Tenant's complying with all of the terms of
this Lease, Tenant may peaceably possess and enjoy the Premises for
the Term without interruption by Landlord or any person claiming
through Landlord.
Fixturing of Premises
By not later than June 1, 1996 the Tenant shall fully
finish, furnish, fixture and staff the whole of the Premises and
shall commence the conduct of its business in the whole of the
Premises as permitted and required pursuant hereto.
ARTICLE V.0 RENT
Tenant to Pay
Tenant shall pay in lawful money of Canada at such
address as shall be designated from time to time by Landlord Basic
Rent and Additional Rent (all of which is herein sometimes referred
to collectively as "Rent") as herein provided without any
deduction, set-off or abatement whatsoever, Tenant hereby agreeing
to waive any set-off rights it may have under any statute or at
law.
Basic Rent
Commencing on the Commencement Date Tenant shall pay to
Landlord a fixed minimum annual rent ("Basic Rent") for each Lease
Year of the Term in the annual amount(s) described as Basic Rent in
section 1.1, to be paid in equal monthly installments, as described
as Basic Rent in section 1.1, in advance on the first day of each
month during the Term. On the Commencement Date, if it is other
than the first day of a calendar month, Tenant shall pay to
Landlord for such partial month Basic Rent computed on a per diem
basis. If an amount per square foot is specified in the
description of Basic Rent in section 1.1, then the Basic Rent is
intended to be such amount per square foot of Rentable Area of the
Premises per annum, and the Basic Rent shall be subject to
adjustment based upon the Architect's certificate of Rentable Area
of the Premises to be delivered pursuant to section 2.21. Within
thirty (30) days after delivery of such certificate all necessary
adjustments will be made and Tenant shall pay to Landlord any
deficiency in previous payments of Basic Rent and Additional Rent,
and if Tenant is not in default under the terms of this Lease the
amount of any overpayment by Tenant of Basic Rent and Additional
Rent shall be paid to Tenant or credited to the account of Tenant.
Additional Rent
In addition to Basic Rent Tenant shall pay to Landlord
all other amounts as and when the same shall be due and payable
pursuant to the provisions of this Lease or pursuant to any other
obligation in respect of the Premises, all of which shall be deemed
to accrue on a per diem basis; all of such amounts are herein
sometimes referred to as "Additional Rent". Tenant shall promptly
deliver to Landlord upon request evidence of due payment of all
payments of Additional Rent required to be paid by Tenant
hereunder.
Deemed Rent and Allocation
If Tenant defaults in payment of any Rent (whether to
Landlord or otherwise) as and when the same is due and payable
hereunder, Landlord shall have the same rights and remedies against
Tenant upon such default as if such sum or sums were rent in
arrears under this Lease. Landlord may allocate payments received
from Tenant among items of Rent then due and payable by Tenant. No
acceptance by Landlord of payment by Tenant of any amount less than
the full amount payable to Landlord, and no endorsement or
direction on any cheque or other written instruction or statement
respecting any payment by Tenant shall be deemed to constitute
payment in full or an accord and satisfaction of any obligation of
Tenant.
Monthly Payments of Additional Rent
Landlord may from time to time by written notice to
Tenant estimate or re-estimate any amount(s) payable by Tenant to
Landlord hereunder including without limitation, amounts in respect
of Operating Costs, Realty Taxes and utilities, for the then
current or next following fiscal period used by Landlord in respect
of each of the said amounts. The fiscal period used by Landlord
may correspond to a shorter period within any twelve month period
where an item, for example Realty Taxes, is payable in full by
Landlord over such shorter period. The amounts so estimated shall
be payable by Tenant in advance in equal monthly installments over
the fiscal period on the same days as the monthly payments of
Basic Rent. Landlord may, from time to time, alter the fiscal
period selected in each case. As soon as practicable after the
expiration of each Fiscal Year, Landlord shall furnish to Tenant
a statement of the actual amounts payable by Tenant in respect of
Operating Costs, Taxes, utilities and any other relevant provisions
hereof for such Fiscal Year. If the amount determined to be
payable by Tenant as aforesaid shall be greater or less than the
payments on account thereof previously made by Tenant, then the
appropriate adjustments will be made and Tenant shall pay any
deficiency to Landlord within sixty (60) days after delivery of
such statement, and if Tenant is not in default under the terms
of the Lease, the amount of any overpayment shall be paid to or
credited to the account of Tenant within sixty (60) days after
the delivery of said statement. Landlord shall provide
Tenant with access to its books and records for the purpose of
conducting an audit to verify the accuracy of said statement. If
the audit discloses a material discrepancy (i.e. in excess of five
percent (5%)) in such statement to the prejudice of the Tenant,
then Tenant shall have the right to recover its costs and expenses
incurred in conducting the audit.
ARTICLE VI.0 TAXES
Taxes Payable by Tenant
Commencing on the Commencement Date and thereafter
throughout the Term, Tenant shall pay to Landlord as and when due
all Realty Taxes and other taxes, if any, levied, confirmed,
imposed, assessed or charged (herein referred to as "charged")
against or in respect of the Premises and all fixtures, equipment,
improvements and alterations in the Premises, and including any
such Realty Taxes and other taxes charged against the Premises in
respect of any Common Facilities. In addition, Tenant shall pay
the Proportionate Share of Realty Taxes, if any, separately charged
against Common Facilities. To the extent of Realty Taxes received
by Landlord from Tenant, Landlord shall pay same to the taxing
authority.
Determination of Tenant's Taxes
Tenant's obligation to pay Realty Taxes charged against
or in respect of the Premises shall be determined on the basis of
a separate xxxx if available. If the relevant taxing authority
does not issue a separate xxxx for the Premises then Tenant's
obligation in respect thereof shall be computed by applying the
relevant tax rate to a separate assessment of the Premises, if any.
If there is neither a separate xxxx for Realty Taxes for the
Premises nor a separate assessment of the Premises for any period
of time, then for such period the Realty Taxes charged against or
in respect of the Premises shall be determined by Landlord, acting
reasonably, on the basis of the then current established principles
of assessment used by the relevant assessing authorities and on the
same basis as the assessment actually obtained for the project as
a whole or the part thereof in which the Premises are located.
Provided that Tenant shall be solely responsible for any increase
in Realty Taxes resulting from any act or election of Tenant or
from any fixtures or improvements in the Premises, and Tenant shall
not be responsible for any such increase resulting from any act or
election of Landlord or any other occupant of the Project or any
fixtures or improvements in other Leasable Areas. Any amounts
payable by Tenant on account of Realty Taxes shall be adjusted on
a per diem basis in respect of any period not falling wholly within
the Term.
Business Taxes
Tenant shall pay to the relevant taxing authority as and
when the same are due and payable all taxes charged in respect of
any business conducted on, or any use or occupancy of, the
Premises.
Tax Bills and Assessment Notices
Tenant shall deliver to Landlord forthwith upon Tenant's
receiving the same copies of all assessment notices, tax bills,
receipts and other documents received by Tenant relating to Realty
Taxes on the Premises or the Project.
Contest of Realty Taxes
Landlord may contest any Realty Taxes and appeal any
assessments related thereto and may withdraw any such contest or
appeal or may agree with the relevant authorities on any settlement
in respect thereof. Tenant will cooperate with Landlord in respect
of any such contest and appeal and shall provide to Landlord such
information and execute such documents as Landlord requests to give
full effect to the foregoing. All costs of any such contest and
appeal by Landlord shall be included in Operating Costs.
Tenant will not contest any Realty Taxes or appeal any
assessments related thereto without first obtaining Landlord's
prior written consent and delivering to Landlord such security
as may be required by Landlord, acting reasonably, against any
costs, liabilities or damages which might arise out of such contest
or appeal. Tenant shall promptly upon request pay all costs and
expenses, including without limitation reasonable legal expenses,
incurred by Landlord as a result of any such contest or appeal by
Tenant and indemnify Landlord against all costs, liabilities or
damages which may be incurred by Landlord or any other person
arising out of such contest or appeal. While any such contest or
appeal by Tenant is in progress Tenant shall continue to pay Realty
Taxes in respect of the Premises as if such contest or appeal had
not been commenced.
ARTICLE VII.0 OPERATION OF PROJECT
Operation of Project by Landlord
Landlord shall repair, maintain and operate the Common
Facilities, in a reasonable manner as would a prudent owner having
regard to its size, age, location and character.
Tenant's Payment of Operating Costs
Commencing on the Commencement Date and thereafter at all
times throughout the Term Tenant shall pay to Landlord: (i) the
Proportionate Share of Operating Costs, adjusted in accordance with
7.3; and (ii) an administration fee equal to fifteen percent (15%)
of the amount payable by the Tenant in respect of Operation Costs.
The amounts payable by Tenant pursuant to this section 7.2 may be
computed on the basis of such periods of time as Landlord shall
determine from time to time and shall be paid to Landlord within
thirty (30) days after the submission to Tenant of a statement
showing the amount payable by Tenant from time to time. All
amounts payable under this Article VII in respect of any period
not falling entirely within the Term shall be adjusted on a per
diem basis.
Adjustments to Operating Costs
If by reason of the conduct of business on the Premises
outside the normal business hours for the Project, as determined by
Landlord, or by reason of the particular use or occupancy of the
Premises or any of the Common Facilities by Tenant, its employees,
agents or persons having business with Tenant, additional costs in
the nature of Operating Costs, such as utility charges or security
costs, are incurred in excess of the costs which would otherwise
have been incurred for such items ("Excess Costs"), then Landlord
shall have the right to determine on a reasonable basis and require
Tenant to pay such Excess Costs.
If Tenant or any other tenant of the Project, pursuant to
its lease or otherwise by arrangement with Landlord, provides at
its cost any goods or services the cost of which would otherwise be
included in Operating Costs, or if any goods or services the cost
of which is included in Operating Costs benefit any portion of the
Project to a materially greater or lesser extent than any other
portion of the Project, then either the denominator for determining
a Proportionate Share, or alternatively the amount of Operating
Costs, may be adjusted as determined by Landlord acting reasonably
to provide for the equitable allocation of the cost of such goods
and services among the tenants of the Project.
ARTICLE VIII.0 USE OF PREMISES
Use of Premises
To the extent that this covenant shall run with the
Premises for the benefit for the Project, excluding the Premises,
Tenant covenants that it shall not use and shall not permit the
Premises to be used for any purpose other than as described as Use
of Premises in section 1.1 hereof, all in keeping with the
standards of a prestige industrial park, and to be no more noxious
or burdensome in terms of smoke, noise, radiation or vibration than
the business initially operated by Tenant on the Premises.
Conduct of Business
At all times throughout the Term Tenant shall
continuously and actively conduct its business in the whole of the
Premises in a first class and reputable manner.
Tenant's Fixtures
Tenant shall install and maintain in the Premises at all
times during the Term first-class trade fixtures including
furnishings and equipment adequate and appropriate for the
business to be conducted on the Premises, all of which shall be
kept in good order and condition. Tenant shall not remove any
trade fixtures or other contents from the Premises during the Term
except in the ordinary course of business or for the purpose of
replacing them with others at least equal in value and function to
those being removed.
Signs
Tenant shall not erect, install or display any sign on or
visible from the exterior of the Premises without the prior written
approval of Landlord, which approval shall not be unreasonably
withheld. Any exterior signage identifying Tenant's business on
the Premises shall be supplied and erected by Tenant at Tenant's
expense.
Waste Removal
Tenant shall not allow any refuse, garbage or any loose,
objectionable material to accumulate in or about the Premises or
the Project and will at all times keep the Premises in a clean and
neat condition. Tenant shall comply with Landlord's regulations
respecting the storage and removal of waste and shall be
responsible for all costs of removal of waste from the Premises
other than costs of routine waste removal included in Operating
Costs. Until removed from the Project all waste from the Premises
shall be kept in appropriate containers within the Premises.
Tenant shall not use the exterior portions of the Premises for
outside storage, including without limitation the storage of any
machinery, equipment or waste.
Pest Control
Tenant shall be responsible for pest extermination in
respect of the Premises and shall engage, for such purpose, such
contractors at such intervals as Landlord shall reasonably require.
Tenant shall not bring or permit to be brought onto the Premises or
the Project any animals or birds of any kind.
Waste and Nuisance
Tenant shall not cause, suffer or permit any waste or
damage to the Premises or leasehold improvements, fixtures or
equipment therein nor permit any overloading of the floors
thereof and shall not use or permit to be used any part of the
Premises for any dangerous, noxious or offensive activity or goods
and shall not do or bring anything or permit anything to be done or
brought on or about the Premises or the Project which results in
undue noise or vibration or which Landlord may reasonably deem to
be hazardous or a nuisance or annoyance to any other tenants or any
other persons permitted to be on the Project, and Tenant shall
immediately take steps to remedy, remove or desist from any
activity, equipment or goods on the Premises to which Landlord
objects on a reasonable basis. Tenant shall take every reasonable
precaution to protect the Premises and the Project from risk of
damage by fire, water or the elements or any other cause.
Tenant shall not itself, and shall not permit any of its
employees, servants, agents, contractors or persons having business
with Tenant, to obstruct any Common Facilities nor to use or permit
to be used any Common Facilities for other than their intended
purposes. Without limiting the foregoing, nothing shall be placed
or stored anywhere in or on the Common Facilities. Tenant shall
not, and shall not permit anyone else to, place anything on the
roof of the Building or go on to the roof of the Building for any
purpose whatsoever, without Landlord's prior written approval,
which may be withheld in Landlord's sole discretion acting
reasonably.
Tenant shall not use any advertising, transmitting or
other media or devices which can be heard, seen, or received
outside the Premises, or which could interfere with any
communications or other systems outside the Premises.
Tenant shall be solely responsible for any contaminant,
pollutant and toxic substance at any time affecting the Premises
resulting from any act or omission of Tenant or any other person on
the Premises or any activity or substance on the Premises during
the Term, and any period prior to the Term during which the
Premises were used or occupied by or under the control of Tenant,
and shall be responsible for the clean-up and removal of any of the
same and any damages caused by the occurrence, clean-up or removal
of any of the same, and Tenant shall indemnify Landlord in respect
thereof.
Compliance with Laws
Tenant shall be solely responsible for obtaining from all
authorities having jurisdiction all necessary permits, licences and
approvals as may be necessary to permit Tenant to occupy the
Premises and conduct its business thereon, as required by all
applicable Laws. Tenant shall comply at its own expense with all
applicable Laws respecting the use, condition and occupation of the
Premises, and all leasehold improvements, fixtures, equipment and
contents thereof.
Deliveries
All deliveries to and from the Premises shall be made
only by way of such driveways and access routes as Landlord may
from time to time designate, acting reasonably.
Prohibited Uses
Tenant shall not cause, suffer or permit the Premises or
any part thereof to be used at any time during the Term for any of
the following businesses or activities:
any type of business or business practice which would, in
the reasonable opinion of Landlord, tend to lower the character or
image of the Project or any portion thereof;
any use which in any way contravenes any restrictive
covenants in leases granted by Landlord after the date hereof;
Tenant covenants and agrees that it will not carry on in the
Premises any business which will in any way place Landlord in
breach of any such restrictive covenants and Tenant will indemnify
and save Landlord harmless from and against all actions, claims,
demands and costs with respect thereto; this subsection (ii) shall
not be interpreted to prevent Tenant from carrying on in the
Premises any business to the extent expressly permitted
pursuant to section 8.1 hereof; or
any business or activity not in compliance with all Laws.
The inclusion of the foregoing provisions of this section
8.10 shall not be deemed to be a representation or warranty of
Landlord that any of the foregoing activities will not be
authorized by Landlord to be conducted on any part of the Project.
If, in the opinion of Landlord, Tenant is in breach of
any of the provisions of this section 8.10, Tenant shall
immediately discontinue such use upon Landlord's written request.
Any restrictive covenants granted by the Landlord shall
not restrict the Tenant from carrying on its business as
contemplated herein and shall not result in any increase in charges
to the Tenant pursuant to this Lease.
ARTICLE IX.0 SERVICES AND UTILITIES
Utilities
Subject to Landlord's ability to do so, Landlord shall
supply or cause to be supplied to the Premises electricity and
other utilities for the reasonable use of the Premises for
their intended purposes. Tenant shall promptly pay for, as and
when they fall due, to Landlord or as Landlord shall from time to
time direct, all costs of supplying water, electricity, gas, steam
and other utilities to or in respect of the Premises, and all costs
for all fittings, connections and meters and all work performed in
connection with any services or utilities provided to the Premises.
Tenant shall promptly execute and deliver any agreements required
by Landlord or by utilities suppliers in respect of the supply of
any utilities to the Premises. Tenant's use of any such utilities
shall not exceed the available capacity of the existing systems
from time to time.
Should there be no individual meters for the measurement
of the consumption of any utilities supplied to the Premises then
Landlord, acting reasonably, may allocate the cost of such
utilities among the various users thereof. If required by
Landlord, Tenant shall install at its expense a separate meter or
meters to measure the consumption of any or all utilities in the
Premises. The cost of any utilities which are not charged to
tenants of the Project individually shall be included in Operating
Costs.
Heating and Air-Conditioning
Tenant shall heat and, where applicable, air-condition
the Premises in a reasonable manner at Tenant's expense using
heating and, where applicable, air-conditioning equipment installed
in the Building. If the heating, ventilating, air-conditioning or
humidity control equipment in or serving the Premises shall require
maintenance, repair or replacement, Tenant at its expense shall
promptly attend to the same in accordance with the manufacturer's
or supplier's specifications and instructions. Tenant shall at its
expense maintain a service contract for such equipment in or
serving the Premises, with a contractor approved in advance in
writing by Landlord, and shall ensure that Landlord is at all times
in possession of a copy of such service contract and shall promptly
deliver to Landlord copies of regular inspection reports and
details of repairs. Landlord shall not be responsible for the
inadequacy of any heating or air-conditioning of the Premises. If
Tenant fails to so maintain, repair or replacement of any of the
heating, ventilating, air-conditioning and humidity control
equipment, and does not rectify such failure within the applicable
cure period provided in section 16.1 after notice from Landlord,
Landlord shall be entitled thereafter to itself attend to the
maintenance, repair and replacement of such equipment, in which
case the cost of such maintenance, repairs or replacement shall
either be charged to Tenant or included in Operating Costs, as
determined by Landlord to be appropriate pursuant to the applicable
provisions of this Lease.
Non-Liability of Landlord
Landlord shall not be liable for any damages, direct or
indirect, resulting from or contributed to by any interruption or
cessation in supply of any utilities or heating, ventilating,
air-conditioning and humidity control. Without limiting or
affecting the generality or interpretation of the foregoing, and
not withstanding the foregoing, it is agreed that the Landlord
shall not be liable for any and all indirect or consequential
damages or damages for personal discomfort or illness of Tenant or
any persons permitted by it to be on the Premises, by reason of the
suspension or non-operation of any utilities, heating, ventilating,
air-conditioning or humidity control.
Landlord's Suspension of Utilities
In order to effect any maintenance, repairs, replacements
or alterations to any of such utilities, heating, ventilating,
air-conditioning or humidity control systems or any other part of
the Project, Landlord shall have the right to modify or temporarily
discontinue or suspend any such systems as required from time to
time. Where reasonably possible to do so, and except in case of
emergency when no notice shall be required, Landlord shall give
Tenant reasonable notice (which notice need not be in writing but
may be given orally, including by telephone, to a person in
apparent authority at the Premises), of any expected interruption
of the supply of utilities, heating, ventilating, air-conditioning
or humidity control systems, or any other similar services, to the
Premises.
Landlord's Services
Tenant shall pay Landlord on demand all charges as
determined and allocated by Landlord acting reasonably in respect
of all special services provided to or for the benefit of Tenant
beyond standard services for the Project the costs of which are
included in Operating Costs.
Any services in respect of the Premises requiring
drilling or otherwise penetrating floors, walls or ceilings, or for
locksmithing, security arrangements or waste removal, shall be
performed only by persons first approved in writing by Landlord,
which approval shall not be unreasonably withheld or delayed.
Landlord's Charges for Services
Unless otherwise expressly agreed between Landlord and
Tenant to the contrary in respect of any specific matter from time
to time, all work performed and materials supplied by Landlord for
Tenant or by reason of Tenant's failure to make timely repairs
respecting the Premises pursuant to the provisions hereof or
otherwise shall be paid for by Tenant to Landlord forthwith on
demand at Landlord's cost for the same plus ten percent (10%) for
inspection and supervision plus ten percent (10%) for overhead and
profit or such other reasonable amounts as may be charged by
Landlord for overhead and profit from time to time.
ARTICLE X.0 MAINTENANCE, REPAIRS AND ALTERATIONS
Maintenance and Repairs of Premises
At all times throughout the Term Tenant at its sole
expense shall perform such maintenance, repairs and replacements as
required to keep the Premises, all contents thereof and all
services and equipment located in or primarily serving the
Premises, in first-class appearance and condition, and in
accordance with all Laws and Landlord's reasonable requirements,
subject only to the obligations of Landlord expressly provided in
section 10.7. For purposes of this section 10.1, but without
affecting the interpretation of any other provision of this Lease,
Premises shall include, without limitation: all leasehold
improvements; all exterior and interior walls (repairs to exterior
walls only if damaged by Tenant), windows and doors, including the
exterior faces thereof; loading docks and bumpers; stairs;
surrounding or enclosing masonry or other materials; and all such
areas and facilities adjacent or proximate to and serving
exclusively the Premises.
Approval of Repairs and Alterations
Tenant shall not make any repairs, replacements, changes,
additions, improvements or alterations (hereinafter referred to as
("Alterations") to the Premises without Landlord's prior written
consent, which consent shall not be unreasonably withheld unless
such proposed Alterations might affect the structure of the
Building, or the coverage of the Project for zoning purposes or the
parking requirements for the Project, or impair the value or
usefulness of the Premises or the Project, in any of which cases
Landlord's consent may be unreasonably withheld in Landlord's sole
discretion. Notwithstanding anything in the foregoing to the
contrary, Tenant shall have the right to make and Landlord consents
to the Tenant's alterations set forth in Schedule "C", subject to
Landlord's prior written approval as to plans and specifications.
With its request for consent Tenant shall submit to
Landlord details of the proposed Alterations including plans and
specifications prepared by qualified architects or engineers, and
such Alterations shall be completed in accordance with the plans
and specifications approved in writing by Landlord. Unless
expressly authorized in writing by Landlord to the contrary, all
Alterations which might cost in excess of $20,000.00 to complete or
which may affect the structure or mechanical, electrical, utility,
sprinkler, communications or other similar systems of the Building,
shall be conducted under the supervision of a qualified engineer
approved by Landlord, such approval not to be unreasonably
withheld.
All Alterations shall be planned and completed in
compliance with all Laws and Tenant shall, prior to commencing any
Alterations, obtain at its expense all necessary permits and
licences. Prior to the commencement of any such Alterations Tenant
shall furnish to Landlord such evidence as reasonably required by
Landlord of the projected cost of Alterations and Tenant's ability
to pay for same, together with such indemnification against costs,
liens and damages as Landlord shall reasonably require including,
if required by Landlord, a performance, completion and labour and
materials bond acceptable to Landlord guaranteeing completion of
such Alterations.
All Alterations shall be performed at Tenant's cost,
promptly and in a good and workmanlike manner and in compliance
with Landlord's reasonable rules and regulations, by competent
contractors or workmen who shall be first approved in writing by
Landlord, which approval shall not be unreasonably withheld or
delayed. If any Alterations affect the structure or any external
portions of the Building or any mechanical, electrical, utility,
sprinkler, communications or other similar systems within the
Premises or the Project, they shall, at Landlord's option, be
performed at Tenant's expense by Landlord or by contractors
designated by Landlord and under Landlord's supervision. For all
Alterations performed by Landlord or at Landlord's expense or under
Landlord's supervision, Tenant shall pay forthwith upon request all
amounts paid or payable by Landlord to third parties and all
reasonable charges of Landlord for its own personnel, plus ten
percent (10%) for Landlord's inspection and supervision. All
Alterations, the making of which might disrupt other tenants or
occupants of the Project or the public, shall be performed outside
normal business hours.
If Tenant performs any such Alterations without
compliance with all of the foregoing provisions of this Article X,
Landlord shall have the right to require Tenant to remove such
Alterations forthwith.
Tenant shall pay to Landlord forthwith upon request all
of Landlord's reasonable costs including, without limitation, fees
of architects, engineers and designers, incurred in dealing with
Tenant's request for Landlord's consent to any Alterations, whether
or not such consent is granted, and in inspecting and supervising
any such Alterations and Landlord shall have the right to require
Tenant to pay Landlord a deposit on account of such costs as a
precondition to Landlord's granting such consent.
(g) The Tenant agrees at its expense to restore the premises
to their original condition at the expiration of the lease term or
any extensions thereof, normal wear and tear excepted, if so
requested by the Landlord.
Repair According to Landlord's Notice
Landlord or any persons designated by it shall have the
right to enter the Building at any time, during normal business
hours except in case of emergency and, except in case of emergency
when no notice shall be required, upon reasonable advance notice to
Tenant (which notice need not however exceed twenty-four (24) hours
and need not be given in writing, but may instead be given orally,
including by telephone, to any person in apparent authority at the
Premises, to view the state of repair and condition thereof and
Tenant shall promptly perform any required maintenance, repairs or
replacements according to Landlord's written notice. Any such
entry and inspection by Landlord shall not unreasonably interfere
with Tenant's quiet and peaceful enjoyment of the Premises except
in the case of an emergency.
Notice by Tenant
Tenant shall give immediate written notice to Landlord of
any accident, defect or damage in any part of the Premises or the
Project which comes to the attention of Tenant or any of its
employees or contractors notwithstanding the fact that Landlord may
have no obligation in respect of the same.
Ownership of Leasehold Improvements
All leasehold improvements installed in or about the
Premises shall forthwith upon the installation thereof become the
property of Landlord but without Landlord's thereby accepting any
responsibility in respect of the maintenance, repair or replacement
thereof. The expression "leasehold improvements" where used in
this Lease includes, without limitation, all fixtures,
installations, alterations and additions from time to time made or
installed in or about the Premises, and includes all of the
following, whether or not they are trade fixtures or easily
removable: doors, partitions and hardware; mechanical, electrical
and utility installations; heating, ventilating, air-conditioning
and humidity control equipment; lighting fixtures and built-in
furniture. The only exclusions from "leasehold improvements" are
free-standing furniture, trade fixtures and equipment not in any
way connected to the Premises or to any utilities systems located
therein, and Tenant's computer equipment.
Construction Liens
Tenant shall make all payments and take all steps as may
be necessary to ensure that no lien is registered against the
Project or any portion thereof as a result of any work, services or
materials supplied to Tenant or the Premises. Tenant shall cause
any such registrations to be discharged or vacated by payment into
court or otherwise, within ten (10) days after notice from
Landlord. If Tenant fails to cause any such registrations to be
discharged or vacated within such ten (10) day period, Tenant shall
indemnify and save harmless Landlord from and against any
liabilities, claims, liens, damages, costs and expenses, including
legal expenses, arising as a result thereof in connection with any
work, services or materials supplied to Tenant or the Premises. If
Tenant fails to cause any such registration to be discharged or
vacated within such ten (10) day period then, in addition to any
other rights of Landlord, Landlord may, but shall not be obliged
to, discharge the same by paying the amount claimed into court, and
the amounts so paid and all costs incurred by Landlord, including
legal fees and disbursements, shall be paid by Tenant to Landlord
forthwith upon demand.
Landlord's Repairs
Subject to the provisions of Article XII herein and
subject to Tenant's obligations hereunder, to the extent that the
failure to do so would materially detrimentally affect access to or
use of the Premises, Landlord shall repair all of the following:
(i) the Common Facilities; and (ii) damage to the Premises,
excluding all leasehold improvements, against which and to the
extent to which Landlord is required to be insured pursuant hereto
or is otherwise insured and against which Tenant is not required to
be insured and is not otherwise insured. Landlord's costs of
compliance with this section 10.7 shall be included in Operating
Costs to the extent set out in section 2.15. Provided that to the
extent that such repair is necessitated directly or indirectly by
any act or omission of Tenant or any servant, employee, agent,
contractor, invitee or licensee or Tenant, Tenant shall be solely
responsible for the cost of such repairs in accordance with section
9.6 and shall indemnify Landlord in respect thereof.
The Landlord at its sole expense shall be responsible for
structural repairs and replacements including those to the
foundation, exterior walls and roof, if not occasioned by the fault
of the Tenant or those for whom the Tenant is responsible. Any
such repairs or replacements shall not unreasonably interfere with
the Tenant's quiet and peaceful enjoyment of the Premises. It is
acknowledged that the roof membrane is a part of the common area
cost of the Building in which the Leased Premises are situated and
is not a structural element.
ARTICLE XI.0 END OF TERM
Vacating of Possession
Forthwith upon the expiry or earlier termination of the
Term, Tenant shall deliver to Landlord vacant possession of the
Premises in such condition in which Tenant is required to keep the
Premises during the Term pursuant hereto and shall leave the
Premises in neat and clean condition and shall deliver to Landlord
all keys for the Premises and all keys or combinations to locks on
doors or vaults in the Premises.
Removal of Trade Fixtures
Provided Tenant has paid all Rent and is not otherwise in
default hereunder, or if otherwise authorized or requested by
Landlord, at the expiry or earlier termination of the Term Tenant
shall remove its trade fixtures and repair all damage resulting
from the installation or removal of such trade fixtures. If at the
expiry or earlier termination of the Term Tenant does not remove
its trade fixtures or any of its other property on the Premises,
Landlord shall have no obligation in respect thereof and may sell
or destroy the same or have them removed or stored at the expense
of Tenant; at the option of Landlord, such trade fixtures or
property shall become the absolute property of Landlord without any
compensation to Tenant.
Removal of Leasehold Improvements
Notwithstanding that the leasehold improvements become
the property of Landlord upon installation, at the expiry or
earlier termination of the Term Tenant shall remove any or all of
such leasehold improvements made or installed in or about the
Premises by Tenant, or by Landlord as Tenant's contractor, as
required by Landlord and in so doing shall repair all damage
resulting from, and shall restore the Premises to their condition
prior to, the installation and removal of such leasehold
improvements.
Overholding by Tenant
If Tenant remains in possession of all or any part of the
Premises after the expiry of the Term with the consent of Landlord
but without any further written agreement, this Lease shall not be
deemed thereby to have been renewed and Tenant shall be deemed to
be occupying the Premises as a monthly tenant on the same terms as
set forth in this Lease insofar as they are applicable to a monthly
tenancy except that beginning with the fourth month of such
overholding by Tenant the monthly Basic Rent shall be twice the
monthly Basic Rent payable during the last twelve months of the
Term.
ARTICLE XII.0 DAMAGE AND DESTRUCTION
Insured Damage to Premises
If there is damage to or destruction of the Premises
caused by an occurrence against which, and to not more than the
extent that, Landlord either is required to insure pursuant to this
Lease or is otherwise insured ("Insured Damage"), then the
following provisions of this section 12.1 shall apply.
If such damage or destruction is such as to render the
whole or any part of the Premises unusable for the purpose of
Tenant's use and occupancy thereof, Landlord shall deliver to
Tenant within thirty (30) days following the occurrence of such
damage or destruction its reasonable opinion as to whether or not
the same is capable of being repaired, to the extent of Landlord's
repair obligations hereunder, within one hundred and eighty (180)
days following such occurrence.
If this Lease is not terminated as herein provided,
Landlord, to the extent of insurance proceeds which it receives or
would have received had it maintained such insurance as required
hereunder, shall diligently proceed to perform repairs to the
Premises to the extent of its obligations pursuant to section 10.7
hereof; and Tenant, commencing as soon as practicable but without
interfering with Landlord's repairs, shall diligently perform such
repairs as are Tenant's responsibility pursuant hereto.
If, (i) in Landlord's reasonable opinion, the Premises
are not capable of being repaired as aforesaid within one hundred
and eighty (180) days following such occurrence, or (ii)
immediately prior to the occurrence of such damage, Tenant was not
using substantially all of the Premises for the purposes permitted
by and as otherwise required pursuant hereto, or (iii) Tenant was
at the time of such damage in breach of this Lease and fails within
fifteen (15) days after notice of such default to remedy same to
the extent possible in view of such damage, Landlord may, at its
option, elect by written notice to the Tenant within thirty (30)
days after delivery by Landlord of the opinion provided for in
subsection 12.1(b) above, to terminate this Lease, whereupon Tenant
shall immediately surrender possession of the Premises and Basic
Rent and all other payments for which Tenant is liable pursuant
hereto shall be apportioned to the effective date of such
termination.
If the damage is such as to render the whole or any part
of the Premises unusable in whole or in part for the purpose of
Tenant's use and occupancy thereof and if immediately prior to the
occurrence of such damage Tenant was using substantially all of the
Premises for the purposes permitted by and as otherwise required
pursuant hereto, then the Rent payable hereunder shall xxxxx to the
extent that Tenant's use and occupancy of the Premises is in fact
diminished, which determination shall be made by Landlord, acting
reasonably, until the earlier of (i) the thirtieth (30th) day after
the Premises are determined by Landlord to be ready for Tenant to
commence its repairs to the Premises, and (ii) the date on which
Tenant first commences the conduct of business in any part of the
Premises which had been damaged.
The respective obligations of Landlord and Tenant with
respect to repair of the Premises following any damage or
destruction shall be performed with all reasonable speed and in
accordance with all applicable obligations to repair contained
herein. Tenant acknowledges that its obligations to repair the
Premises after such damage or destruction shall be performed at its
sole cost without any contribution by Landlord provided that such
damage or destruction was not caused by Landlord's fault and
whether or not Landlord had at any time made any contribution to
the cost of any leasehold improvements in the Premises. In any
event, within thirty (30) days after Landlord has completed its
repairs to the Premises as aforesaid, Tenant shall complete its
repairs to the Premises and shall recommence the conduct of
business thereon.
Uninsured Damage and Last Two Years
If there is damage to or destruction of the Premises and
if, in Landlord's reasonable opinion, of which notice shall be
given to Tenant within fifteen (15) days after the later of the
date of such damage or destruction and the date upon which Landlord
is notified by Tenant of such damage or destruction, the Premises
are not capable of being repaired to the extent of Landlord's
repair obligations within thirty (30) days following the giving of
such notice, if (i) such damage or destruction is not Insured
Damage, or (ii) such damage or destruction occurs within the last
two (2) years of the Term and either Tenant has no remaining rights
to renew this Lease or, having the right to renew this Lease fails
to do so within fifteen (15) days after receipt of the said notice,
then Landlord, at its option to be exercised by written notice
given to Tenant within thirty (30) days after the later of the date
of such damage or destruction and the date upon which Landlord is
notified by Tenant of such damage or destruction, may terminate
this Lease whereupon Tenant shall immediately surrender possession
of the Premises and Basic Rent and all other payments for which
Tenant is liable hereunder shall be apportioned to the effective
date of such termination. If this Lease is not terminated as
aforesaid the parties shall repair as provided in subsection
12.1(c) hereof and there shall be no abatement of any Rent unless
the damage or destruction is Insured Damage and then only to the
extent expressly provided in subsection 12.1(e) above.
Damage to Project
If thirty-five (35%) percent or more of the Rentable Area
of Leasable Areas of the Project is damaged or destroyed by any
cause whatsoever, whether or not there is any damage to the
Premises, Landlord may, at its option, by notice given to Tenant
within sixty (60) days after such occurrence, terminate this Lease
as of a date specified in such notice, which date shall be not less
than thirty (30) days and not more than one hundred and eighty
(180) days after the giving of such notice. In the event of such
termination Tenant shall surrender vacant possession of the
Premises by not later than the said date of termination, and Basic
Rent and all other payments for which Tenant is liable hereunder
shall be apportioned to the effective date of termination. If
Landlord does not so elect to terminate this Lease, Landlord shall
diligently proceed to repair and rebuild the Project to the extent
of its obligations pursuant hereto to the extent of insurance
proceeds which Landlord receives or would have received had it
maintained such insurance as required hereunder, and to the extent
that any mortgagee entitled to be paid such insurance proceeds
consents to the use of same for such purpose.
Restoration of Premises or Project
If there is damage to or destruction of the Premises or
the Project and if this Lease is not terminated pursuant hereto,
Landlord, in performing its repairs as required hereby, shall not
be obliged to repair or rebuild in accordance with the plans or
specifications for the Premises or the Project as they existed
prior to such damage or destruction; rather, Landlord may repair or
rebuild in accordance with any plans and specifications chosen by
Landlord in its sole discretion provided that Tenant's use of and
access to the Premises and the general overall quality of the
Project are not materially detrimentally affected by any difference
in plans or specifications of the Premises or the Project.
Determination of Matters
For the purposes of this Article XII all matters
requiring determination such as, without limitation, the extent to
which any area(s) of the Premises or the Project are damaged or are
not capable of being used, or the time within which repairs may be
made, unless expressly provided to the contrary, shall be
determined by Landlord's Architect, such determination to be final
and binding on the parties.
ARTICLE XIII.0 INSURANCE AND INDEMNITY
Landlord's Insurance
Landlord shall obtain and maintain in full force and
effect during the Term with respect to the Project insurance
against such occurrences and in such amounts, on such terms and
with such deductible(s) as would a prudent owner of such a project.
Such insurance may include, without limitation: (i) insurance on
the Building and any improvements therein which Landlord desires to
insure, against damage by fire and other risks covered by extended
coverage fire insurance policies or, at Landlord's option, all
risks insurance; (ii) boiler and machinery insurance; (iii) rental
income insurance; (iv) public liability insurance; and (v) such
other insurance and in such amounts and on such terms as Landlord,
in its discretion, may reasonably determine. Notwithstanding that
Tenant shall be contributing to the costs of such insurance
pursuant to the terms of this Lease, Tenant shall not have any
interest in or any right to recover any proceeds under any of
Landlord's insurance policies.
Tenant's Effect On Other Insurance
Tenant shall not do or permit anywhere on the Premises or
Project anything which might: (i) result in any increase in the
cost of any insurance policy of Landlord on the Project; (ii)
result in an actual or threatened cancellation of or adverse change
in any insurance policy of Landlord on the Project; or (iii) be
prohibited by any insurance policy of Landlord on the Project.
If the cost of any insurance policies of Landlord on the
Project is increased as a result of any improvements made by Tenant
or anything done or permitted by Tenant anywhere on the Premises or
Project, Tenant shall pay the full amount of such increase to
Landlord forthwith upon demand. Tenant's responsibility for any
increased cost of insurance as aforesaid shall be conclusively
determined by a statement issued by the organization, company or
insurer establishing the insurance rates for the relevant policy.
If there is in actual or threatened cancellation of or
adverse change in any policy of insurance of Landlord on the
Project by reason of anything done or permitted by Tenant anywhere
on the Premises or Project, and if Tenant fails to remedy the
situation giving rise to such actual or threatened cancellation or
change within twenty-four (24) hours after notice from Landlord,
then Landlord may, at its option, either (i) terminate this Lease
forthwith by written notice; or, (ii) remedy the situation giving
rise to such actual or threatened cancellation or change, all at
the cost of Tenant to be paid to Landlord forthwith upon demand,
and for such purpose Landlord shall have the right to enter upon
the Premises without further notice.
Tenant's Insurance
Tenant shall, at its sole expense, maintain in full force
and effect at all times throughout the Term and such other times,
if any, as Tenant occupies the Premises or any portion thereof,
such insurance as would be maintained by a prudent tenant of
premises such as the Premises, which insurance shall include at
least all of the following:
comprehensive general liability insurance on an
occurrence basis with respect to any use and occupancy of or things
on the Premises, and with respect to the use and occupancy of any
other part of the Project by Tenant or any of its employees,
servants, agents, invitees, licensees, subtenants, contractors or
persons for whom Tenant is in law responsible, with coverage for
any occurrence of not less than Five Million Dollars ($5,000,000)
or such higher amount as Landlord may reasonably require on not
less than one (1) month's notice;
all risks insurance covering the leasehold improvements,
trade fixtures and contents on the Premises, for not less than the
full replacement cost thereof and with a replacement cost
endorsement;
broad form comprehensive boiler and machinery insurance
on all insurable objects located on or about the Premises or which
are the property or responsibility of Tenant, for not less than the
full replacement cost thereof and with a replacement cost
endorsement;
business interruption insurance in such amounts as
necessary to fully compensate Tenant for direct or indirect loss
of sales or earnings attributable to any of the perils required to
be insured against under the policies referred to in subsections
13.3(a)(ii) and (iii) and all circumstances usually insured against
by cautious tenants including losses resulting from interference
with access to the Premises or the Project as a result of such
perils or for any other reason;
tenant's legal liability insurance for the full
replacement cost of the Premises, and the loss of use thereof; and
(vi) any other insurance against such risks and in such
amounts as Landlord or any mortgagee of Landlord may from time to
time reasonably require upon not less than thirty (30) days' notice
to Tenant.
Each of Tenant's insurance policies shall either name
Landlord as an additional named insured or otherwise protect
Landlord's interest, and shall be taken out with insurers and shall
be in such form and on such terms as are satisfactory to Landlord
from time to time. Without limiting the generality of the
foregoing, each of Tenant's insurance policies shall contain:
(i) the standard mortgage clause as may be required by
any mortgagee of Landlord;
(ii) an undertaking by the insurer that no material
change adverse to Tenant or Landlord or any mortgagee of Landlord
will be made and the policy will not lapse or be terminated, except
after not less than thirty (30) days' written notice to Tenant and
Landlord and to any mortgagee of Landlord;
(iii) a provision stating that Tenant's insurance
policy shall be primary and shall not call into contribution any
other insurance available to Landlord;
(iv) a joint loss endorsement, where applicable;
(v) a severability of interests clause and a
cross-liability clause; and
(vi) a waiver, in respect of the interests of Landlord
and any mortgagee of Landlord, of any provision with respect to any
breach of any warranties, representations, declarations or
conditions contained in the said policy.
Tenant shall ensure that Landlord shall at all times be
in possession of either certificates or certified copies of
Tenant's insurance policies which are in good standing and in
compliance with Tenant's obligations hereunder.
Tenant hereby releases Landlord and its servants, agents,
employees, contractors and those for whom Landlord is in law
responsible from all losses, damages and claims of any kind in
respect of which Tenant is required to maintain insurance hereunder
or is otherwise insured.
Landlord's Right to Place Tenant's Insurance
If Tenant fails to maintain in force, or pay any premiums
for, any insurance required to be maintained by Tenant hereunder,
or if Tenant fails from time to time to deliver to Landlord
satisfactory proof of the good standing of any such insurance or
the payment of premiums therefor, then Landlord, without prejudice
to any of its other rights and remedies hereunder, shall have the
right but not the obligation to effect such insurance on behalf of
Tenant and the cost thereof and all other reasonable expenses
incurred by Landlord in that regard shall be paid by Tenant to
Landlord forthwith upon demand.
Landlord's Non-Liability
Tenant agrees that Landlord shall not be liable or
responsible in any way for any injury or death to any person or for
any loss or damage to any property at any time on or about the
Premises or any property owned by or being the responsibility of
Tenant or any of its servants, agents, customers, contractors or
persons for whom Tenant is in law responsible elsewhere on or about
the Project, no matter how the same shall be caused except where
contributed to by the Landlord's own negligence. Without limiting
the generality of the foregoing, Landlord shall not be liable or
responsible for any such injury, death, loss or damage to any
persons or property caused or contributed to by fire, explosion,
steam, water, rain, snow, dampness, leakage, electricity or gas
except where contributed to by the Landlord's own negligence.
Without limiting or affecting the generality or interpretation of
the foregoing, and notwithstanding the foregoing, it is agreed that
Landlord shall in no event be liable for any indirect or
consequential damages suffered by Tenant or any persons permitted
by it to be on the premises, whether or not caused by the
negligence of the Landlord, its servants, agents, employees,
contractors or persons for whom Landlord is in law responsible.
Indemnity of Landlord
Tenant shall indemnify Landlord and all of its servants,
agents, employees, contractors and persons for whom Landlord is in
law responsible against any and all liabilities, claims, damages,
losses and expenses, including all reasonable legal fees and
disbursements, arising from: (i) any breach by Tenant of any of the
provisions of this Lease; (ii) any act or omission of any person on
the Premises or any use or occupancy of or any things in the
Premises; (iii) any act or omission of Tenant or any of its
servants, agents, employees, invitees, licensees, subtenants,
concessionaires, contractors or persons for whom Tenant is in law
responsible on the Premises or elsewhere on or about the Project;
or (iv) any injury or death of persons, or any loss or damage to
property of Tenant or any of its servants, agents, employees,
invitees, licensees, subtenants, contractors or persons for whom
Tenant is in law responsible, on the Premises or elsewhere on or
about the Project; provided that, such indemnity obligation shall
not extend to any liabilities, claims, damages, losses and expenses
arising from the negligence of the Landlord and/or its agents or
employees.
Landlord's Employees and Agents
Every indemnity, exclusion or release of liability and
waiver of subrogation contained in this Lease for the benefit of
Landlord shall extend to and benefit all of Landlord's servants,
agents, employees, and others for whom Landlord is in law
responsible. Solely for such purpose, and to the extent that
Landlord expressly chooses to enforce the benefits of this section
for the foregoing persons, it is agreed that Landlord is the agent
or trustee for such persons.
ARTICLE XIV.0 ASSIGNMENT, SUBLETTING AND CHANGE OF CONTROL
Consent Required
Tenant shall not assign this Lease in whole or in part
and shall not sublet or part with or share possession of all or any
part of the Premises and shall not grant any licences or other
rights to others to use any portion of the Premises (all of the
foregoing being hereinafter referred to as a "Transfer"; a party
making a Transfer is referred to as a "Transferor" and a party
taking a Transfer is referred to as a "Transferee") without the
prior written consent of Landlord in each instance, which consent
shall not be unreasonably withheld; provided that it shall be
reasonable for Landlord to withhold or delay its consent to a
Transfer unless it is shown to Landlord's satisfaction that: (i)
the proposed Transferee has a good business and personal reputation
and has financial strength at least sufficient to satisfy all the
obligations of Tenant hereunder; (ii) without affecting the
interpretation of section 8.1 or any other provision hereof, the
business proposed to be carried on by the Transferee on the
Premises will not be incompatible with the uses of other tenants of
the Project, and will not be more burdensome on the Project, in
terms of parking requirements or any other factor, than the
business previously carried on by Tenant on the Premises; and (iii)
the proposed Transferee is not an existing occupant of any part of
the Project and has not then recently been a prospect involved in
bona fide negotiations with Landlord respecting the leasing of any
premises in the Project and is not in any way affiliated with such
existing occupant or bona fide prospect. The provisions of this
Article XIV shall apply to any Transfer which might occur by
inheritance or operation of law.
If Landlord withholds, delays or refuses to give consent
to any Transfer, whether or not Landlord is entitled to do so,
Landlord shall not be liable for any losses or damages in any way
resulting therefrom and Tenant shall not be entitled to terminate
this Lease or exercise any other remedy whatever in respect thereof
except to seek the order of a court of competent jurisdiction
compelling Landlord to grant any such consent which Landlord is
obliged to grant pursuant to the terms of this Lease.
No Transfer may be made where any portion of Rent is
lower than fair market rates.
Obtaining Consent
All requests to Landlord for consent to any Transfer
shall be made to Landlord in writing together with a copy of the
agreement pursuant to which the proposed Transfer will be made,
accompanied by such information in writing as a landlord might
reasonably require respecting a proposed Transferee including,
without limitation, name, business and home addresses and telephone
numbers, business experience, credit information and rating,
financial position and banking and personal references,
description of business proposed to be conducted by the Transferee
on the Premises and parking requirements for such business. Tenant
shall promptly pay all costs incurred by Landlord in considering
and processing the request for consent including legal costs and
all costs of completing any documentation to implement any
Transfer, which shall be prepared by Landlord or its solicitor if
required by Landlord, and as a prior condition to considering any
request for consent Landlord may require from Tenant payment of a
reasonable deposit, of at least $250.00, on account of Landlord's
said costs.
Landlord's Option
Notwithstanding the other provisions contained in this
Article XIV, after Landlord receives a request for consent to a
Transfer with the information and copy of agreement hereinabove
required, it shall have the option, to be exercised by written
notice to Tenant within fifteen (15) days after the receipt of such
request, information and agreement, to: (i) terminate this Lease as
it relates to the portion of the Premises which is the subject of
the proposed Transfer ("Transferred Premises"); (ii) receive all
amounts to be paid to Tenant under the agreement in respect of such
Transfer less only the direct costs of Tenant related to the
Transfer such as legal costs and commissions, and less, in the case
of a sublease, all amounts receivable by Tenant under the sublease
equal to the amounts payable by Tenant hereunder each month during
the term of the sublease in respect of the Transferred Premises; or
(iii) take a Transfer from Tenant of the Transferred Premises on
the same terms as the Transfer in respect of which Tenant has
requested Landlord's consent, as aforesaid. If Landlord elects to
terminate this Lease as aforesaid, Tenant shall have the right, to
be exercised by written notice to Landlord within ten (10) days
after receipt of such notice of termination, to withdraw the
request for consent to the Transfer, in which case Tenant shall not
proceed with such Transfer, the notice of termination shall be null
and void and this Lease shall continue in full force and effect.
If, pursuant to this section 14.3, Landlord terminates this Lease,
or takes a Transfer of the Premises or any portion thereof,
Landlord shall be deemed to have arbitrarily and unreasonably
withheld its consent to the Transfer, as Landlord is entitled to do
pursuant to section 14.1. If Landlord terminates this Lease as it
relates to a portion of the Premises, or takes a Transfer of a
portion of the Premises, Tenant hereby grants to Landlord and any
others permitted by Landlord the right, in common with Tenant and
all others entitled to use the same, to use for their intended
purposes all portions of the Premises in the nature of common areas
(such as corridors, washrooms, lobbies and the like) or which are
reasonably required for proper access to or use of the Transferred
Premises (such as reception area, interior corridors, mechanical or
electrical systems and ducts and the like).
Terms of Consent
In the event of a Transfer Landlord shall have the
following rights, in default of any of which no such Transfer shall
occur or be effective:
to collect a deposit or further deposit to be held as a
security deposit pursuant to section 16.5 such that the security
deposit held by Landlord shall be equivalent to at least the Basic
Rent payable for the last two (2) months of the Term in respect of
the premises which are the subject of the Transfer;
to require Tenant and the Transferee and Indemnifier, if any,
to enter into a written agreement to implement any amendments to
this Lease to give effect to Landlord's exercise of any of its
rights hereunder;
to require the Transferee to enter into an agreement with
Landlord in writing and under seal to be bound by all of Tenant's
obligations under this Lease in respect of the portion of the
Premises which is the subject of the Transfer;
to require the Transferee to waive any rights, pursuant to
subsection 39(2) of the Landlord and Tenant Act (Ontario) and any
amendments thereto and any other statutory provisions of the same
or similar effect, to pay any Rent less than any amount payable
hereunder;
to require, if the Transfer is a sublease or other transaction
other than an assignment, that upon notice from Landlord to the
Transferee all amounts payable by the Transferee each month shall
be paid directly to Landlord who shall apply the same on account of
Tenant's obligations under this Lease; and
to require that this Lease be amended to delete therefrom any
right of renewal and any first right to lease premises in the
Project.
Effect of Transfer
No consent of Landlord to a Transfer shall be effective
unless given in writing and executed by Landlord and no such
consent shall be presumed by any act or omission of Landlord or by
Landlord's failure to respond to any request for consent or by
Landlord's accepting any payment of any amount payable hereunder
from any party other than Tenant. No Transfer and no consent by
Landlord to any Transfer shall constitute a waiver of the necessity
to obtain Landlord's consent to any subsequent or other Transfer.
In the event of any Transfer or any consent by Landlord
to any Transfer, Tenant shall not thereby be released from any of
its obligations hereunder but shall remain bound by all such
obligations pursuant to this Lease for the balance of the Term. If
this Lease is renewed or extended by any Transferee pursuant to any
option of Tenant, each Transferor shall be liable for all of the
obligations of Tenant throughout the Term as renewed or extended.
Every Transferee shall be obliged to comply with all of
the obligations of Tenant under this Lease, and any default of any
Transferee shall also constitute a default of Tenant hereunder. If
this Lease is ever disclaimed or terminated by a trustee in
bankruptcy of a Transferee Tenant shall nevertheless remain
responsible for fulfillment of all obligations of Tenant hereunder
for what would have been the balance of the Term but for such
disclaimer or termination, and shall upon Landlord's request enter
into a new lease of the Premises for such balance of the Term and
otherwise on the same terms and conditions as in this Lease.
No Advertising of Premises
Tenant shall not advertise this Lease or all or any part
of the Premises or the business or fixtures therein for sale
without Landlord's prior written consent.
Mortgage of Lease
The restrictions on Transfer as aforesaid shall apply to
any assigning, subletting, mortgaging, charging or otherwise
transferring of the Premises or this Lease for the purpose of
securing any obligation of Tenant.
Corporate Tenant
If Tenant or any occupant of the Premises at any time is
a corporation, the transfer of the majority of the issued shares in
the capital stock or any transfer, issuance or division of any
shares of the corporation or of any affiliate of the corporation
sufficient to transfer control to others than the then present
shareholders of the corporation shall be deemed for all purposes of
this Article XIV to be a Transfer. Upon request Tenant shall make
the corporate books and records of Tenant and of any affiliate of
Tenant available to Landlord and its representatives for inspection
in order to ascertain whether or not there has at any time during
the Term been a change in control of Tenant corporation as
aforesaid.
Assignment by Landlord
If Landlord sells, leases, mortgages or otherwise
disposes of the Project or any part thereof or assigns its interest
in this Lease, to the extent that the purchaser or assignee agrees
with Landlord to assume the covenants and obligations of Landlord
hereunder, Landlord shall thereupon be released from all liability
pursuant to the terms of this Lease.
ARTICLE XV.0 STATUS AND SUBORDINATION OF LEASE
Status Statement
Tenant shall, within ten (10) days after written request
from Landlord, execute and deliver to Landlord, or to any actual or
proposed lender, purchaser or assignee of Landlord, a statement or
certificate in such form as requested by Landlord stating (if such
is the case, or stating the manner in which such may not be the
case): (i) that this Lease is unmodified and in full force and
effect; (ii) the date of commencement and expiry of the Term and
the dates to which Basic Rent and any other Rent, including any
prepaid rent, have been paid; (iii) whether or not there is any
existing default by Landlord under this Lease and, if so,
specifying such default; and (iv) that there are no defences,
counter claims or rights of set-off in respect of the obligations
hereunder of Tenant.
Subordination
At the option of Landlord to be expressed in writing from
time to time this Lease and the rights of Tenant hereunder are and
shall be subject and subordinate to any and all mortgages, trust
deeds and charges (any of which is herein called "Mortgage") on the
Project or any part thereof now or in the future, including all
renewals, extensions, modifications and replacements of any
Mortgages from time to time. Tenant shall at any time on notice
from Landlord or holder of a Mortgage attorn to and become a tenant
of the holder of any such Mortgage upon the same terms and
conditions as set forth herein and shall execute promptly on
request any certificates, agreements, instruments of postponement
or attornment or other such instruments or agreements, including
without limitation any short form or notice of this Lease for the
purpose of registration on title to the Project, as requested from
time to time to give full effect to this Article XV. Provided
Tenant is not in default hereunder, Landlord shall use reasonable
efforts to obtain from the holder of any Mortgage, in respect of
which tenant has executed and delivered an instrument of
postponement, subordination or attornment as required hereby, its
agreement to permit Tenant to continue to occupy the Premises in
accordance with the terms of this Lease.
Tenant's Failure to Comply
If Tenant fails to execute any certificate, agreement,
instrument, or other document as required by the foregoing
provisions of this Article XV within ten (10) business days after
request by Landlord, then Landlord shall have the right, without
limiting any other rights of Landlord hereunder or at law, to
terminate this Lease or to execute any such certificate, agreement,
instrument or document on behalf of Tenant and in Tenant's name,
for which purpose Tenant hereby appoints Landlord as Tenant's
attorney pursuant to the Powers of Attorney Act (Ontario).
Registration
Tenant shall not register this Lease or any short form or
notice hereof except in such form as has been approved by Landlord
in writing, Tenant agreeing to pay Landlord's reasonable expenses,
including legal fees, of such approval. Tenant shall forthwith
provide to Landlord a duplicate registered copy of any short form
or notice of this Lease or other document registered on title.
ARTICLE XVI.0 DEFAULT AND REMEDIES
Default and Remedies
If any of the following shall occur:
Tenant fails, for any reason, to make any payment of Rent
as and when the same is due to be paid hereunder and such default
continues for five (5) days after such payment was due, whether or
not notice is given to Tenant;
Tenant fails, for any reason, to observe or perform any
obligation of Tenant pursuant to this Lease other than the payment
of any Rent, and such default continues for fifteen (15) days in
the event that third parties are affected; otherwise thirty (30)
days, or such shorter period in the event of an emergency as
expressly provided herein, or in case there is no emergency, such
longer period as is necessary to cure such default, after notice
thereof to Tenant;
any of Landlord's insurance policies on the Project are
actually or threatened to be cancelled or adversely changed as a
result of any use of or contents in the Premises;
Tenant shall purport to make a Transfer affecting the
Premises, or the Premises shall be used by any person or for any
purpose, other than in compliance with this Lease;
Tenant or any other occupant of the Premises makes an
assignment for the benefit of creditors generally or becomes
bankrupt or insolvent or takes the benefit of any statute for
bankrupt or insolvent debtors or makes any proposal or arrangement
with creditors, or Tenant makes any sale in bulk of any property on
the Premises (other than in conjunction with a Transfer approved in
writing by Landlord and made pursuant to all applicable
legislation), or steps are taken for the winding up or other
termination of Tenant's existence or liquidation of its assets;
a trustee, receiver, receiver-manager, or similar person
is appointed in respect of the assets or business of Tenant or any
other occupant of the Premises;
Tenant attempts to or does abandon the Premises, or if
the Premises are vacant or unoccupied for a period of five (5)
consecutive days or more without the prior written consent of
Landlord;
this Lease or any other property of Tenant in the
Premises is at any time seized or taken in execution which remains
unsatisfied for a period of five (5) days or more;
termination or re-entry by Landlord is permitted under
any provision of this Lease or at law;
then the then current and the next three (3) months' Rent shall be
forthwith due and payable and, in addition to any other rights or
remedies to which Landlord is entitled hereunder or at law,
Landlord shall have the following rights and remedies, which are
cumulative and not alternative, namely:
(i) to terminate this Lease in respect of the whole or
any part of the Premises by written notice to Tenant;
(ii) as agent of Tenant to relet the Premises and take
possession of any furniture, fixtures, equipment or other property
thereon and, upon giving notice to Tenant, to store the same at the
expense and risk of Tenant or sell or otherwise dispose of the same
at public or private sale without further notice, and to make
alterations to the Premises to facilitate their reletting and to
apply the net proceeds of the sale of any furniture, fixtures,
equipment, or other property or from the reletting of the Premises,
less all expenses incurred by Landlord in making the Premises ready
for reletting and in reletting the Premises, on account of the Rent
due and to become due under this Lease and Tenant shall be liable
to Landlord for any deficiency and for all such expenses incurred
by Landlord as aforesaid; nothing done by Landlord shall be
construed as an election to terminate this Lease unless written
notice of such termination is given by Landlord to Tenant;
(iii) to remedy any default of Tenant in performing any
repairs, work or other obligations of Tenant hereunder, and in so
doing to enter upon the Premises, without any liability to Tenant
therefor and without constituting a re-entry of the Premises or
termination of this Lease or breach of the Landlord's covenant of
quiet enjoyment, and, in such case, Tenant shall pay to Landlord
forthwith upon demand all reasonable costs of Landlord in remedying
or attempting to remedy any such default plus ten (10%) percent for
inspection and supervision plus ten (10%) percent for overhead and
profit or such other reasonable amounts as may be charged by
Landlord for overhead and profit from time to time; and
(iv) to obtain damages from Tenant including, without
limitation, if this Lease is terminated, all deficiencies between
all amounts which would have been payable by Tenant for what would
have been the balance of the Term, but for such termination, and
all net amounts actually received by Landlord for such period.
Interest
All amounts of Rent shall bear interest from their
respective due dates until the dates of payment at the rate of five
(5%) percent per annum in excess of the prime rate of interest
charged by Landlord's bank in Ontario from time to time.
Costs
Tenant shall pay to Landlord forthwith upon demand all
costs incurred by Landlord, including, without limitation,
reasonable legal expenses on a solicitor and his own client basis
and reasonable compensation for all time expended by Landlord's own
personnel, arising as a result of any default in Tenant's
obligations under this Lease.
Distress and Tenant's Property
Tenant hereby waives and renounces the benefit of any
present or future statute taking away or limiting Landlord's right
of distress and agrees with Landlord that, notwithstanding any such
statute, all goods and chattels from time to time on the Premises
shall be subject to distress for Rent. All Tenant's personal
property on the Premises shall at all times be the unencumbered
property of Tenant.
Security Deposit
NOT APPLICABLE
Remedies to Subsist
No waiver of any of Tenant's obligations under this Lease
or of any of Landlord's rights in respect of any default by Tenant
hereunder shall be deemed to have occurred as a result of any
condoning, overlooking or delay by Landlord in respect of any
default by Tenant or by any other act or omission of Landlord
including, without limitation, the acceptance of any Rent less than
the full amount thereof or the acceptance of any Rent after the
occurrence of any default by Tenant. The waiver by Landlord of any
default of Tenant or of any rights of Landlord, which shall be
effected only by an express written waiver executed by Landlord,
shall not be deemed to be a waiver of any term, covenant or
condition in respect of which such default or right has been waived
and shall not be deemed to be a waiver of any subsequent default of
Tenant or right of Landlord. All rights and remedies of Landlord
under this Lease and at law shall be cumulative and not
alternative, and the exercise by Landlord of any of its rights
pursuant to this Lease or at law shall at all times be without
prejudice to any other rights of Landlord, whether or not they are
expressly reserved. Tenant's obligations under this Lease shall
survive the expiry or earlier termination of this Lease and shall
remain in full force and effect until fully complied with.
Impossibility of Performance
If and to the extent that either Landlord or Tenant shall
be delayed in the fulfillment of any obligation under this Lease,
other than the payment by Tenant of any Rent, by reason of
unavailability of material, equipment, utilities, services or by
reason of any Laws, or by reason of any other similar cause beyond
its control and not avoidable by the exercise of reasonable
foresight (excluding the inability to pay for the performance of
such obligation), then the party being delayed shall be entitled to
extend the time for fulfillment of such obligation by a time equal
to the duration of such delay and the other party shall not be
entitled to any compensation for any loss or inconvenience
occasioned thereby. The party delayed will, however, use its best
efforts to fulfill the obligation in question as soon as is
reasonably practicable by arranging an alternate method of
providing the work, services or materials.
ARTICLE XVII.0 CONTROL OF PROJECT
Landlord's Control
The Project is at all times subject to the exclusive
control and management of Landlord. Without limiting the
generality of the foregoing, Landlord shall have the right to
obstruct or close off or restrict entry to all or any part of the
Project for purposes of performing any maintenance, repairs or
replacements or for security purposes or to prevent the accrual of
any rights to any person or the public or any dedication thereof,
provided that in exercising any such right Landlord shall use
reasonable best efforts to minimize interference with Tenant's
access to and use of the Premises.
Alterations of the Project
At any time or times Landlord shall have the right to
make any changes in, additions to, deletions from or relocations of
any part of the Project including any of the Common Facilities (any
of which are herein referred to as "Changes") as Landlord shall
consider desirable. If Landlord makes any Changes to the Premises,
subject to Tenant's prior written approval which will not be
unreasonably withheld, Landlord shall ensure that the Premises, as
affected by such Changes, shall be substantially the same in size
and shall be in all other material respects reasonably comparable
to the Premises originally demised hereby. If the Premises are
relocated as a result of such Changes, Landlord shall be
responsible for the direct cost of moving Tenant to the relocated
Premises and constructing replacement leasehold improvements
therein, but not for any indirect costs or losses of Tenant.
Tenant shall not have the right to object to or make any claim on
account of the exercise by Landlord of any of its rights under this
section 17.2, except that Tenant shall be entitled to an abatement
of Basic Rent, pro rata in proportion to the premises so affected,
for any period of time in excess of one (1) day that Tenant is
unable to conduct business in the Premises as a result of the
making of such Changes. Landlord shall make any such Changes as
expeditiously as is reasonably possible and so as to interfere as
little as is reasonably possible with Tenant's business on the
Premises.
Tenant acknowledges that portions of the Project may be
under construction during the Term, and that such construction
activities may cause temporary noise and disturbance to existing
tenants of the Project. Landlord will use reasonable efforts to
minimize interference with Tenant's occupation of the Premises as
a result of such construction activities, but Tenant acknowledges
that in no event shall any noise or other disturbance caused by
such construction constitute a breach of Tenant's right to quiet
enjoyment of the Premises.
Use of Common Facilities
Tenant shall not itself and shall not permit any of its
employees, servants, agents, contractors or persons having business
with Tenant, to obstruct any Common Facilities including driveways,
laneways or access routes, or to park vehicles in any portion of
the Common Facilities other than such areas, if any, as expressly
authorized by Landlord. Tenant shall ensure that its employees,
customers, and others doing business with it, shall not park
vehicles anywhere on the Project other than on the Premises.
Landlord shall have the right, at Tenant's expense payable on
demand, to remove any such obstruction or improperly parked
vehicles, without any liability for any damage caused thereby.
Rules and Regulations
Landlord may from time to time make and amend reasonable
rules and regulations for the management and operation of the
Project and Tenant and all persons under its control shall comply
with all of such rules and regulations of which notice is given to
Tenant from time to time, all of which shall be deemed to be
incorporated into and form part of this Lease. Landlord shall not
make any rules or regulations which conflict with any express
provision of this Lease unless and only to the extent required by
any applicable Laws. Landlord shall act reasonably in enforcing
such rules and regulations but shall not be liable for their
non-enforcement.
Access to Premises
Without limiting any other rights Landlord may have
pursuant hereto or at law, Landlord shall have the right to enter
the Premises, including the building, at any time for any of the
following purposes: (i) to examine the Premises and to perform any
maintenance, repairs or alterations to any part of the Premises or
to any equipment and services serving the Premises or any other
part of the Project; (ii) in cases of emergency; (iii) to read any
utility or other meters; (iv) during the last twelve (12) months of
the Term to show the Premises to prospective tenants and to permit
prospective tenants to make inspections, measurements and plans;
and (v) at any time during the Term to show the Premises to
prospective purchasers or lenders.
Landlord shall have the right to run through the Premises
conduits, wires, pipes, ducts and other elements of any systems for
utilities, heating, ventilating, air-conditioning and humidity
control, telephone and other communications systems and any other
such systems to serve the Premises or the Project.
Landlord shall exercise its rights pursuant to this
section 17.5 in such manner and at such times as Landlord, acting
reasonably but in its sole discretion, shall determine. At any
time that entry by Landlord is desired in case of emergency, and if
no personnel of Tenant are known by Landlord to be present on the
Premises or if such personnel fail for any reason to provide
Landlord immediate access at the time such entry is desired,
Landlord may forcibly enter the Premises without liability for
damage caused thereby.
Expropriation
If the Premises or any part thereof shall be expropriated
(which for the purposes of this Article XVII shall include a sale
by Landlord to any authority with the power to expropriate) by any
competent authority then:
Landlord and Tenant shall co-operate with each other so
that Tenant may receive such award to which it is entitled in law
for relocation costs, business interruption, and the value of
leasehold improvements paid for by Tenant and the amortized
portion, if any, of leasehold improvements paid for by Landlord,
and so that Landlord may receive the maximum award to which it may
be entitled in law for all other compensation arising from such
expropriation including, without limitation, all compensation for
the value of Tenant's leasehold interest in the Premises;
except for such compensation to which Tenant shall be
entitled as aforesaid, all Tenant's other rights in respect of such
expropriation are hereby assigned to Landlord, and within ten (10)
days after request by Landlord Tenant shall execute such further
documents as requested by Landlord to give effect to such
assignment, failing which Landlord is hereby irrevocably appointed,
pursuant to the Powers of Attorney Act (Ontario) Tenant's attorney
to do so on behalf of Tenant and in its name; and
Landlord shall have the option, to be exercised by
written notice to Tenant, to terminate this Lease, effective on the
date the expropriating authority takes possession of the whole or
any portion of the Premises.
If the whole or any part of the Project shall be
expropriated, then subject to the foregoing provisions respecting
expropriation of the Premises:
all compensation resulting from such expropriation shall
be the absolute property of Landlord and all of Tenant's rights, if
any, to any such compensation are hereby assigned to Landlord and
within ten (10) days after request by Landlord Tenant shall execute
such further documents as requested by Landlord to give effect to
such assignment, failing which Landlord is hereby irrevocably
appointed, pursuant to the Powers of Attorney Act (Ontario),
Tenant's attorney to do so on behalf of Tenant and in its name; and
if the expropriation of part of the Project is such as to
render undesirable, in Landlord's reasonable opinion, the
continuing operation of the portion of the Project in which the
Premises are situate, Landlord shall have the right to terminate
this Lease as of the date the expropriating authority takes
possession of all or any portion of the Project.
Development of Project
Landlord shall be entitled from time to time to make any
application it considers necessary or desirable in respect of the
Project, including applications for any re-zoning, variance,
severance, or by-law amendment or enactment. Promptly upon request
from Landlord, Tenant will provide its consent and co-operation in
respect of any application made by Landlord in the process of
developing the Project, and will execute all documents and make all
attendances required in connection therewith. Without limiting the
generality of the foregoing, Tenant agrees that it will not contest
or object to any application or other process initiated or
supported by Landlord in respect of the development of the Project,
including without limitation any local improvements or any
assessments in respect thereof required or imposed by governmental
authorities.
Landlord may from time to time grant, and whenever
requested by Landlord tenant will consent to or co-operate or join
in the granting of, any licences, easements, rights-of-way and
other rights in the nature of the foregoing, in favour of any
municipal, governmental or public utility authorities or companies,
which Landlord deems necessary or desirable for the provision to
the Project of roadways, utilities, services or amenities or
otherwise for the furtherance of the development of the Project.
17.8 Landlord's Consent
If Landlord withholds, delays or refuses to give consent as
provided by the terms of this Lease, whether or not Landlord is
entitled to do so, Landlord shall not be liable for any losses or
damages in any way resulting therefrom and Tenant shall not be
entitled to terminate this Lease or exercise any remedy whatever in
respect thereof except to seek the order of a court of competent
jurisdiction compelling Landlord to grant any such consent which
Landlord is obliged to grant pursuant to the terms of this Lease.
ARTICLE XVIII.0 MISCELLANEOUS
Notices
All notices, statements, demands, requests or other
instruments ("Notices") which may be or are required to be given
under this Lease shall be in writing and shall be delivered in
person or sent by prepaid registered Canadian mail addressed, if to
the Tenant, at the Address for Service of Notice on Tenant, if to
the Guarantor, if any, at the Address for Service of Notice on
Guarantor, and if to the Landlord at the Address for Service of
Notice on Landlord, all as provided in section 1.1 hereof.
All such Notices shall be conclusively deemed to have
been given and received upon the day the same is personally
delivered or, if mailed as aforesaid, four (4) business days
(excluding Saturdays, Sundays, holidays and days upon which regular
postal service is interrupted or unavailable for any reason) after
the same is mailed as aforesaid. Any party may at any time by
notice in writing to the other change the Address for Service of
Notice on it. If two or more persons are named as Tenant or
Indemnifier, any Notice given hereunder shall be sufficiently given
if delivered or mailed in the foregoing manner to any one of such
persons.
Complete Agreement
There are no covenants, representations, agreements,
warranties or conditions in any way relating to the subject matter
of this Lease or the tenancy created hereby, expressed or implied,
collateral or otherwise, except as expressly set forth herein, and
this Lease constitutes the entire agreement between the parties and
may not be modified except by subsequent written agreement duly
executed by Landlord and Tenant.
Time of the Essence
Time is of the essence of all terms of this Lease.
Applicable Law
This Lease shall be governed by and interpreted in
accordance with the laws of the Province of Ontario. The parties
agree that the Courts of Ontario shall have jurisdiction to
determine any matters arising hereunder.
Severability
If any provision of this Lease is illegal, unenforceable
or invalid, it shall be considered separate and severable and all
the remainder of this Lease shall remain in full force and effect
as though such provision had not been included in this Lease but
such provision shall nonetheless continue to be enforceable to the
extent permitted by law.
Section Numbers and Headings
The table of contents and all section numbers and
headings of this Lease are inserted for convenience only and shall
in no way limit or affect the interpretation of this Lease.
Interpretation
Whenever a word importing the singular or plural is used
in this Lease such word shall include the plural and singular
respectively. Where any party is comprised of more than one
entity, the obligations of each of such entities shall be joint and
several. Words importing persons of either gender or firms or
corporations shall include persons of the other gender and firms or
corporations as applicable. Subject to the express provisions
contained in this Lease, words such as "hereof", "herein",
"hereby", "hereafter", and "hereunder" and all similar words or
expressions shall refer to this Lease as a whole and not to any
particular section or portion hereof.
Successors
This Lease shall enure to the benefit of and be binding
upon the parties hereto and their respective heirs, executors,
administrators, successors assigns and other legal representatives
except only that this Lease shall not enure to the benefit of any
of such parties unless and only to the extent expressly permitted
pursuant to the provisions of this Lease.
ARTICLE XIX
19.0 SPECIAL PROVISIONS
19.1 Conditions to Tenant's Rights
If Tenant has duly and punctually performed each and
every of its obligations under this Lease and is not in continuing
default of this Lease, and has not made an assignment for the
benefit of creditors and has not taken the benefit of any statute
in force for bankrupt or insolvent debtors, no petition in
bankruptcy or receiving order has been made against Tenant, and no
receiver or other similar person has taken control of the assets or
business of Tenant or a substantial portion thereof, and Tenant has
not sublet or parted with possession of all or any part of the
Premises, then and only then shall sections 19.2, apply.
19.2 Renewal Option
The Tenant shall have the Option to Renew the herein
Lease for two (2) additional period of five years each upon the
same terms and conditions, save and except for the rental rates
which shall be as follows, provided that the Tenant exercises such
option by notice in writing delivered to the Landlord no later than
nine (9) months prior to the expiration of the Lease Term.
Option Number 1:
Year Rate/Sq.Ft. Rate/Annum Rate/Month
11 $3.10 $ 880,400.00 $73,366.67
12 $3.30 $ 937,200.00 $78,100.00
13 $3.50 $ 994,000.00 $82,833.33
14 $3.70 $1,050,800.00 $87,566.67
15 $3.90 $1,107,600.00 $92,300.00
Option Number 2:
Year Rate/Sq.Ft. Rate/Annum Rate/Month
16 To be negotiated based upon market rental rates for similar
17 space in the Brantford, Ontario area. Failing agreement
18 to this, all parties agree to refer this matter to arbitration.
19
20
19.3 Environmental Provisions
(a) For the purposes of this Lease "Environmental Laws" shall
mean all applicable federal, provincial, municipal, or local laws,
statutes, regulations, by-laws and orders, directives and decisions
rendered by any ministry, department or administrative or
regulatory agency.
(b) The Landlord represents and warrants that at the
commencement of the term, the Buildings and Leased Premises are in
compliance with all Environmental Laws affecting their condition
and use.
(c) The Landlord hereby releases and agrees to defend,
indemnify and hold the Tenant harmless from and against all claims,
demands, liabilities, losses, damages, expenses, costs and
reasonable attorney's fees arising out of or resulting from the
presence of any Hazardous Substance (as defined below) upon, in or
under the Leased Premises on and prior to the date on which this
Lease commences, including and without limiting the generality of
the foregoing, the presence of any Hazardous Substance in the tow
motor line; in the drainage trough directly north of the tow motor
line; in the air, soil or ground water; and in capacitors,
transformers, light ballasts or other electrical equipment. The
term "Hazardous Substance" means asbestos, polychlorinated
biphenyls, nuclear fuel or materials, chemical wastes, radioactive
materials, explosives, known carcinogens, petroleum products and
any other dangerous, toxic, or hazardous pollutant, contaminant,
chemical, material or substance defined as hazardous or as a
pollutant or contaminant in, or the release or disposal of which is
regulated by, any existing federal, provincial, municipal, local or
other statute, law, ordinance or regulation, which may relate to or
deal with human health or the environment.
(d) The Tenant represents and warrants that there are no
judgements, decrees or orders outstanding and no litigation or
administrative, arbitrable, or governmental or quasi-governmental
proceedings or inquiries pending or, to the best of the Tenant's
knowledge, threatened against or related to, in whole or in part,
the Tenant, including, without limitation, those relating to
Environmental Laws.
(e) The Tenant will carry on business upon and with respect
to the Leased Premises in compliance in all material respects with
all permits, licences, registrations and approvals necessary to
carry on its business, including, without limitation, all
applicable environmental permits, licences, consents, approvals,
orders and authorizations required under applicable Environmental
Laws.
(f) The business which the Tenant intends to conduct upon and
with respect to the Leased Premises is not in breach of any
applicable covenant, restriction or Environmental Laws currently
enforced.
(g) If the Tenant receives any notice, citation, summons or
order or learns of any complaint which has been filed with respect
to the business carried on by the Tenant on the Leased Premises
concerning any alleged violation of any Environmental Laws or with
respect to any alleged failure to have any environmental permits or
approvals required in connection with the conduct of its business,
or any alleged violation with respect to compliance with the terms
or conditions of any environmental permits or approvals in
connection with the conduct of its business, the Tenant shall
forthwith notify the Landlord thereof in writing.
(h) On the termination of this Lease for any reason the
Tenant will surrender the Leased Premises to the Landlord in the
condition in which they are required by the Lease to be kept by the
Tenant and as closely as is reasonably possible to their condition
at the Lease Commencement Date, all at the Tenant's expense.
(i) The Tenant shall indemnify and hold the Landlord harmless
from and against any claims, demands, liabilities, losses, damages
and expenses suffered by the Landlord arising out of or in
connection with any and all environmental liabilities relating to
the activities of the Tenant upon or with respect to the Leased
Premises from and after the date on which this Lease commences.
(j) The Landlord or the Landlord's Authorized Agent shall
have the right to perform an environmental inspection of the Leased
Premises, including any testing therein, upon providing the Tenant
with twenty-four (24) hours prior written notice of the Landlord's
or the Landlord Authorized Agent's intent to do so. The Tenant
shall fully cooperate with the Landlord or the Landlord's
Authorized Agent.
19.4 Right Of First Refusal (Warehouse and/or Office Space)
The Tenant shall have the Right of First Refusal to lease
all or part of the space identified as "X" and in black on Schedule
"B" at any time during the original term of the lease, or during
any subsequent renewal term of this lease, if, as and when said
space becomes vacant. Pursuant to this right of first refusal, the
Landlord will notify the Tenant when the said space becomes vacant
and a bonafide offer acceptable to the Landlord is received, in
which event the Tenant shall have forty-eight (48) hours to make
the same offer which the Landlord must accept.
19.5 Condition Of Premises
The Landlord represents to the best of its knowledge and
belief that the premises are free of any material structural
defect, and the roof, plumbing, heating, air-conditioning,
electrical, drainage, sprinkler, lighting, and, in general all
systems contained herein are in good working condition and fully
operational.
19.6 Building Codes
The Landlord represents to the best of its knowledge and
belief that the building meets all provincial and municipal
Building Codes and By-laws.
19.7 Environmental Representation
The Landlord represents to the best of its knowledge and
belief, that the premises are in compliance with all environmental
laws and regulations. The Landlord agrees to indemnify, defend and
hold Tenant harmless against any liability for the failure of the
premises to comply with environmental laws and regulations prior to
the date of Tenant's occupancy.
19.8 Net Rent Free Period (Early Occupancy)
The Landlord agrees to grant a Net Rent Free Period
(Early Occupancy) from November 15, 1995 to March 31, 1996 equal to
four months and fifteen days. It is understood and agreed by both
the Landlord and the Tenant that all Additional Rent shall apply
during this "period".
19.9 Exterior Use of Premises
The Tenant shall be allowed unobstructed and exclusive
use of its area of the shipping/receiving yard and parking areas
adjacent to the demised premises as shown on Schedule "B" during
the lease term or option periods thereof if exercised.
19.10 Non-Disturbance Agreement
The Landlord shall obtain from any existing holder of a
mortgage, charge, or encumbrance, a non-disturbance agreement in
favour of the Tenant whereby the Tenant's use and occupation of the
Leased Premises will not be interfered with by any such mortgagee,
chargor, encumbrancer provided that the Tenant shall not be in
continuous breach of any of its covenants or obligations under the
Lease. If this is not available then it shall not represent a
default by the Landlord.
19.11 Landlord's Work
It is understood and agreed that the Landlord at the
Landlord's expense, shall be responsible for the following work
which shall be performed by the Landlord and/or its agents in a
proper and workmanlike manner using new materials and shall comply
with the Ontario Building Code and municipal codes and bylaws:
a) Remove all debris and obstructions and fill in all pits,
excluding the floor level conveyor, and depressions providing a
levelled floor suitable for the Tenant's business,
b) Clean and repair floors, (remove, scrub, degrease and
power sweep ready for floor sealant,
c) Make all necessary repairs to the roof, walls and yard,
d) Provide seventeen (17) truck level doors with heavy duty
automatic levellers, overhead doors, tracks and door seals. This
work shall include grading, paving and concrete dolly pads, if not
existing, for truck access to the shipping/receiving doors. Two
(2) of the truck level doors shall be constructed on the south side
of the Building and Landlord shall remove the existing cement block
office structure at this location to provide access to these doors;
and, five (5) of the truck level doors shall be constructed on the
east side of the Building,
e) Provide up to one hundred and fifty (150) parking spaces
in the existing employee parking lot area on the south side of the
subject premises for the exclusive use of the Tenant,
f) Remove the portable shop office and related equipment in
the premises and replace the fence to secure the transformers,
g) Provide, if required by the Tenant, a new entrance to the
office area of the premises,
h) Provide, if required by the Tenant, two (2) floor level
doors in the north wall of the premises.
i) With the Tenant's prior written authorization, remove and
dispose of all paint and other residue and curbing from the
concrete floor of the mezzanine area in accordance with all local,
provincial and federal laws, rules and regulations. The above work
shall include alteration of the protective railing around floor
openings. Tenant shall reimburse Landlord for the cost of such
work plus applicable taxes, if any, but the Landlord shall not
contract for any such work without the prior written consent of the
Tenant.
19.12 Early Termination
The Tenant may exercise its right of early termination of
the Lease for any reason as follows:
a) The right of termination is only exercisable by the
Tenant after the seventy-eighth month of the initial Term,
b) The Tenant must give the Landlord six months prior
written notice of its intent to terminate the Lease,
c) The Tenant shall at the end of the aforementioned six
month notice period pay to the Landlord an amount equivalent to the
net rent for the next twelve (12) month period, and
d) The Tenant shall provide the Landlord with vacant
possession of the premises at the end of the six month notice
period, in accordance with the terms in the Lease.
19.13 Office Space
If available, the Tenant shall have the right, within
ninety (90) days from the commencement date herein, to lease all
the office space in Building No. 1, consisting of approximately
25,000 square feet, in the Xxxxx Trade & Industrial Park. If the
Tenant exercises said option then the office space shall be leased
at the same rental rates and term as provided for herein. The
Tenant shall improve the premises at its sole cost and expense.
19.14 Close Down Period (Hold Over)
The Tenant at the end of the Lease term and any of the
Option periods to renew, if exercised shall have an additional
three (3) months as a "Close Down Period". It is understood and
agreed by both the Landlord and the Tenant that the net rental and
all additional rents shall apply during this period as per the last
month's rates of the Lease.
19.15 Commissions
a) Each party shall be responsible for the payment of
its own broker's commissions, finder's fees or similar charges.
b) Landlord shall indemnify and hold the Tenant harmless
from any liabilities, losses, damages and expenses suffered by
Tenant arising out of or resulting from any claims or demands for
broker's commissions, finder's fees or similar charges by anyone
with whom Landlord has dealt in connection with this Lease.
c) The Tenant shall indemnify and hold the Landlord
harmless from any liabilities, losses, damages and expenses
suffered by Landlord arising out of or resulting from any claims or
demands for broker's commissions, finder's fees or similar charges
by anyone with whom Tenant has dealt in connection with this Lease.
19.16 Mediation/Arbitration
The exclusive procedure for resolution of any disputes or
controversies arising under this Lease or the transactions
contemplated hereunder shall be as follows:
The parties shall attempt in good faith to resolve by
mediation any and all disputes and differences of any kind between
the parties arising under this Lease or the transactions
contemplated hereunder which cannot be settled amicably by the
parties. The mediator shall be a mutually acceptable third party,
who shall be responsible for the conduct of the mediation process.
If the matter or dispute has not been resolved pursuant to the
aforesaid mediation procedure within sixty (60) days of the
commencement of such procedure (which period may be extended by
mutual agreement), if either party does not participate in such
mediation, or if the parties cannot agree on a mutually acceptable
mediator within thirty (30) days of delivery of notice by one party
to the other of its intention to mediate a dispute, the parties
shall submit to arbitration. Any arbitration commenced or
conducted hereunder shall be conducted pursuant to the Arbitrations
Xxx 0000 (Ontario) as amended from time to time, to the extent the
provisions thereof are not inconsistent with the provisions of this
Section 19.16. Any such arbitration proceedings shall be
conducted in Toronto, Ontario by a panel of three (3) arbitrators
appointed in accordance with the following provisions:
a) Arbitration Panel:
The arbitration panel shall consist of three (3)
arbitrators. Landlord shall appoint one (1) arbitrator and Tenant
shall appoint one (1) arbitrator. The two (2) arbitrators thus
appointed shall appoint one (1) arbitrator who shall act as the
Chairman of the arbitration panel. In the event of any default in
the appointment of an arbitrator or any inability to agree on the
appointment of an arbitrator or the Chairman of the arbitration
panel, either party may apply to a judge on the Ontario Court
(General Division) to appoint an arbitrator or a third arbitrator,
as the case may be.
b) Binding Award:
The award of the arbitrators shall be final and binding
on the parties to the arbitration, their successors and assigns and
there shall be no appeal therefrom with respect to any controversy.
The costs of arbitration, and which party or parties shall bear the
costs and expenses or if all of the parties shall share the costs
and expenses and, if so, in what proportion, shall be decided by
the arbitrators taking into strict account the provisions of this
Lease.
c) Enforcement:
The award of the arbitrators shall be enforceable by any
court having jurisdiction over the party or parties against which
the award has been rendered, or where assets of the party or
parties against which the award has been rendered can be located.
Each of the parties agree to pay the amount of, and otherwise
comply with, any arbitral award and to pay any costs and expenses
of arbitration which the arbitrators determine that it is required
to pay within fifteen (15) Business Days after receipt of notice of
the arbitrators' award.
IN WITNESS WHEREOF the parties have executed this Lease.
XXXXX TRADE & INDUSTRIAL PARK INC.
Per: c/s
Per:
ACE HARDWARE CANADA LIMITED
Per: XXXXX X. XXXXXX, PRESIDENT & CEO
Per: XXXXX X. LEAGUE, SECRETARY
SCHEDULE "A"
In the City of Brantford, in the County of Xxxxx, being
composed of Part of Lots 37, 38 and 39 in Concession 3 of the
Geographic Township of Brantford, designated as PARTS 1, 2, 3 and
4 on Reference Plan number 2R-4137, deposited in the Land Registry
Office for the Registry Division of Brant.
Subject to an Easement as described in instrument number
A89909 in favour of THE CORPORATION OF THE CITY OF BRANTFORD, its
successors and assigns, over that Part of said Lot 39 designated as
PART 3 on Reference Plan number 2R-4137.
SCHEDULE "B"
SCHEDULE "C"
TENANT ALTERATIONS
1. Refurbish 2nd floor bathrooms
2. Exterior perimeter fence - dock (east loading area)
3. Proposed parking lot
4. Clean 2nd floor structure
5. Remove paint from floor - 2nd floor
6. Painting 2nd floor
7. Re-light 2nd floor
8. Remove 2nd floor offices
9. Cover steel sash windows
10. Add stairs to 2nd floor
11. Add ramps for rail access
12. Renovate aerosol room
13. Renovate 1st floor offices
14. Add employee entrance
15. Line safety/security
16. In-rack sprinklers
17. At Tenant's option install wall mounted gas fired forced air
heaters on mezzanine level
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