THIS LEASE made as of the 29th day of June, 2007
Exhibit 10.2
THIS LEASE made as of the 29th day of June, 2007
IN PURSUANCE OF THE SHORT FORMS OF
LEASES ACT
BETWEEN:
WINDALE PROPERTIES INC.
(the "Landlord")
OF THE FIRST PART
-
and -
INDUSTRIAL MINERALS,
INC.
(the "Tenant")
OF THE SECOND PART
ARTICLE 1
DEFINITIONS
The
parties hereto agree that when used in this Lease or in any Schedule attached to this Lease
the following words or expressions have the meaning hereinafter set forth.
1.01 "Building" means all those
lands located in the Province of Ontario, known municipally as
Xxxxx
000, 0000 Xxxxx Xxxxxxxx
Xxx, Xxxxxxxx, being more particularly described in Schedule "A" attached hereto or as such
lands may be altered, expanded or reduced from time to time and the buildings,
improvements, equipment and facilities erected thereon or situate from time to time
therein, and includes those areas, if any, designated or intended to be leased for retail,
service, office and storage purposes and those areas not so designated or intended and all
Common Areas and Facilities.
1.02 "Common Areas and Facilities" means:
(a) those
areas, facilities, utilities, improvements, equipment and installations in the Building
which, from time to time, are not designated or intended by the Landlord to be leased to
Tenants of the Building; and
(b) those
areas, facilities, utilities, improvements, equipment and installations which serve or are
for the benefit of the Building, whether or not located within, adjacent to, or near the
Building and which are designated from time to time by the Landlord as part of the Common
Areas and Facilities. Common Areas and Facilities include without limitation, all areas,
facilities, utilities, improvements, equipment and installations which are provided or
designated (and which may be changed from time to time) by the Landlord for the use or
benefit of the Tenants, their employees, customers and other invitees in common with others
entitled to the use or benefit thereof in the manner and for the purposes permitted by this
Lease.
1.03 "Complex" means those
lands known municipally as 0000-0000 Xxxxx Xxxxxxxx Xxx, Xxxxxxxx, Xxxxxxx being all those
lands comprising Parcel Block 1-3, Section 20M-367, being Part Block 1, Plan 20M-367
designated as Part 1, Plan 2OR-8425, Town of Oakville, Regional Municipality of Halton.
1.04 "Co-Tenancy Agreement"
means an agreement between Xxxx X. Xxxxxxx, Caralan Management Limited, E. Xxxxxx Xxxxxxxx
and E. Xxxx Xxxxxxxx, Xxxxxx X'Xxxxxxxxx and Xxxxx X'Xxxxxxxxx, and, the Landlord dated
August 18, 1988 and any amendments or successor agreements thereto.
1.05 "Exclusive Use Common
Areas" means those Common Areas and Facilities and service areas designated by the Landlord
for the exclusive use, benefit or service of certain, but not all, Tenants in the Building
including the Tenant.
1.06 "Leased Premises" means
the premises leased to the Tenant as referred to and described in Section 3.01
hereof.
1.07 "Net
Rent" means the annual rent payable by the Tenant pursuant to Section 4.02 hereof.
1.08 "Mortgagee" means any
mortgagee, debenture or bondholder, or hypothecary creditor (including any trustee of or
bondholders) of the Building or any part thereof.
1.09 "Parking Lands" means
those lands in the Complex which are designated for the parking of vehicles, and, legally
described as Part of Parcel Block 1 - 3, Section 20M-367 being Part Block 1, Plan 20M-367
designated as Part 19, Plan 20R-8626, Town of Oakville, Regional Municipality of
Halton.
1.10 "Person" if the context
allows, include any person, firm, partnership, corporation or any group of persons, firms,
partnerships or corporations or any combination thereof.
1.11 "Proportionate Share"
means a fraction which has as its numerator the Usable Area of the Leased Premises, and as
its denominator, the total Usable Area of the Building as defined in Section 1.17
hereof.
1.12 "Proportionate Share of
the Exclusive Use Common Area" means a fraction of which the numerator is the Usable Area
of the Leased Premises, the denominator is the total Usable Area of the Building for all
Tenants who have the use and benefit of service of the Exclusive Use Common Area.
1.13 "Rent" means all Net Rent
and all other sums payable pursuant to this Lease including Additional Rent as defined in
Section 4.03.
1.14 "Rentable Area of the
Leased Premises" means the Usable Area of the Leased Premises plus the Tenant's
Proportionate Share of the Common Areas and Facilities and the service areas plus the
Tenant's Proportionate Share of the exclusive Use Common Areas.
1.15 "Rental Year" means a
period of time, the first Rental Year commencing on the first day of the Term hereof, and
ending on the last day of the month of December next following; and thereafter Rental Years
shall consist of consecutive periods of twelve calendar months. If, however, the Landlord
considers it necessary or convenient for the Landlord's accounting purposes, the Landlord
may at any time and from time to time, by written notice to the Tenant, specify an annual
date from which each subsequent Rental Year is to commence, and, in such event, the then
current Rental Year (the "Short Rental Year") shall terminate on the day preceding the
commencement of such Rental Year. The last year of the Term shall terminate upon the
expiration or earlier termination of this Lease, as the case may be.
1.16 Rentable Area of the
Building" means the aggregate of all rentable areas of premises leased or available for
leasing within the Building.
1.17
“Usable Area of the Building” means the aggregate of all usable areas of
premises leased or available for leasing within the Building.
1.18 "Rules and Regulations"
means the rules and regulations adopted and promulgated by the Landlord from time to time
acting reasonably and in such manner as would a prudent landlord of a reasonably similar
building, and includes the Rules and Regulations presently in existence, a copy of which
are annexed here as Schedule "D".
1.19 "Term" means the period of
time referred to and described in Section 3.04 hereof.
1.20 "Usable Area of the Leased Premises" means:
(a) In
the case of a whole floor in the Building, one hundred percent (100%) of all areas within
the outside walls, and shall be computed by measuring to the exterior face of the permanent
exterior walls or to the glass line of the outer building walls without deduction for
columns and projections necessary to the Building;
(b) In
the case of part of a floor in the Building, one hundred percent (100%) of all areas leased
to the Tenant for its exclusive possession which area of exclusive possession shall be
computed by measuring from the exterior face of the permanent exterior walls or from the
glass line of the exterior walls to the outside of partitioning erected by the Landlord to
delineate the access corridor for the floor and to the center line of partitions which
separate the area leased from adjoining rentable areas without deduction for the Tenant's
Proportionate Share of all columns and projections necessary to the building.
ARTICLE II
2.01 Extended Meanings
The
words "hereof", "hereunder" and similar expressions used in any Section or Subsection of
this Lease relate to the whole of this Lease and not to that Section or Subsection only,
unless otherwise expressly provided. The use of the neuter singular pronoun to refer to the
Landlord or the Tenant is deemed a proper reference even though the Landlord or the Tenant
is an individual, a partnership, a corporation or a group of two or more individuals,
partnerships or corporations. The necessary grammatical changes required to make the
provisions of this Lease apply in the plural sense where there is more than one Landlord or
Tenant and to either corporations, associations, partnerships, or individuals, males or
females, shall in all instances be assumed as though in each case fully expressed.
2.02 Partial
Invalidity
If
for any reason whatsoever any term, covenant or condition of this Lease, or the application
thereof to any person or circumstances, is to any extent held or rendered invalid,
unenforceable or illegal, then such term, covenant or condition:
(a) is
deemed to be independent of the remainder of the Lease and to be severable and divisible
therefrom, and its invalidity, unenforceability or illegality does not affect, impair or
invalidate the remainder of the Lease or any part thereof; and
(b) continues
to be applicable to and enforceable to the fullest extent permitted by law against any
Person and circumstances other than those as to which it has been held or rendered invalid,
unenforceable or illegal.
Neither
party is obliged to enforce any term, covenant or condition of this Lease against any
Person, if, or to the extent by so doing, such party is caused to be in breach of any laws,
rules, regulations or enactments from time to time in force.
2.03 Entire Agreement
This
Lease and the Schedules and Riders, if any, attached hereto and forming a part hereof,
together with the Rules and Regulations set forth all the covenants, promises, agreements,
conditions and understandings between the Landlord and the Tenant governing the Leased
Premises and there are no covenants, promises, agreements, conditions or understandings,
either oral or written, between them, other than are herein set forth. Except as herein
otherwise provided, no subsequent alteration, amendment, change or addition to this Lease
shall be binding upon the Landlord or the Tenant unless in writing and signed by each of
them.
2.04 Governing
Law
This
Lease shall be construed in accordance with, and governed by the Laws in force in the
Province of Ontario.
2.05 Time of Essence
Time is of the essence of this Lease and of every part hereof.
2.06 Acknowledgement
The
Tenant acknowledges that it has examined the Leased Premises before taking possession. The
commencing of business by the Tenant shall be conclusive evidence against the Tenant that
at the time of examination the Leased Premises were in satisfactory condition. The Tenant
agrees that there is no promise, representation or undertaking by, or binding upon, the
Landlord with respect to any alteration, remodelling or decoration of, or installation of
equipment or fixtures in, the Leased Premises except as such as may be expressly set forth
in this lease.
ARTICLE III
GRANT AND TERM
3.01 Leased Premises
In
consideration of the rents, covenants and agreements herein contained on the part of the
Tenant to be paid, observed and performed, the Landlord leases to the Tenant, and the
Tenant leases from the Landlord, those certain premises presently designated as
Suite Number 100,
containing a Usable Area of Leased
Premises of approximately
1080 sq.ft.
which shall be measured or calculated
by the Landlord and shall be certified by him in accordance with Section 1.21 and a
Proportionate Share of the common area calculated as
194 sq. ft.
for a Rentable Area of
1274 sq.
ft. The Leased Premises are
designated as area H on the plan attached as Schedule "B".
3.02 Use of Additional Areas
The
use and occupation by the Tenant of the Leased Premises includes the non-exclusive and
non-transferable right or license to use in common with others entitled thereto, and for
the purposes for which they are intended and during such hours as the Building may be open
for business, as determined by the Landlord from time to time, the Common Areas and
Facilities, subject in each case to this Lease and to the Rules and Regulations.
3.03 Parking
(1) The
Tenant acknowledges the following:
1. That
the Parking Lands are owned by the Landlord and third parties as owners-in-common;
2. That
the Parking Lands are subject to the Co-Tenancy Agreement of which the Co-Tenancy Agreement
sets out rules regarding the use of the Parking Lands;
3. That
the Tenant has received and read a copy of the Co-Tenancy Agreement;
(2) The Tenant shall be entitled to use the Parking
Lands in accordance with the Co-Tenancy Agreement and any rules set out by the
Landlord. The Tenant acknowledges that there are no parking facilities for the exclusive
use of the Tenant. The Tenant shall not take any action or omit to do any act which would
cause the Landlord to be in breach of the Co-Tenancy Agreement.
3.04 Commencement and Ending Date of Term
The
Tenant shall have and hold the Leased Premises for and during the Term which shall be,
unless sooner terminated pursuant to the other provisions hereof, the period of
Three (3)
years, commencing on the
1st
day of August, 2007 (the "Commencement
Date") and to be fully completed and ended on the
31st
day of July, 2010.
ARTICLE IV
RENT
4.01 Covenant
to Pay
The
Tenant shall pay Rent as herein provided.
4.02 Minimum Rent
The
Tenant shall pay in each Rental Year from and after the Commencement Date to the Landlord
at the office of the Landlord, or at such other place as may be designated by the Landlord,
in lawful money of Canada, without any prior demand therefor and without deduction,
abatement, set-off or compensation whatsoever, as Minimum Rent, the sum of
NINETEEN THOUSAND ONE HUNDRED AND
TEN DOLLARS AND ZERO CENTS ($19,110.00)
PLUS GST
payable in equal consecutive monthly
installments of ONE THOUSAND
FIVE HUNDRED AND NINETY TWO DOLLARS AND FIFTY CENTS($1,592.50) PLUS GST
each in advance on the first day of
each calendar month of the First Rental Year. The Minimum Rent for the First Rental Year is
based upon an annual rate of
FIFTEEN DOLLARS AND ZERO CENTS
($15.00) per square foot of
the Net Rentable Area of the Leased Premises. When the Net Rentable Area of the Leased
Premises is certified by the Landlord, the Minimum Rent shall, if necessary, be adjusted
accordingly.
If the Commencement Date is on
a day other than the first day of the calendar month, then the Tenant shall pay, upon the
Commencement Date, a portion of the Minimum Rent pro-rated on a per diem basis from the
Commencement Date to the end of the month in which the Commencement Date occurs, based upon
a period of three hundred sixty five (365) days.
The Tenant shall present to the Landlord at the beginning of each Rental Year throughout
the Term, a series of monthly postdated cheques for such Rental Year for the aggregate of
the monthly payments of Minimum Rent and any payments required by this Lease to be paid
monthly in advance.
4.03 Additional Rent
Realty
Taxes, Common Area Maintenance Costs, Building Insurance, Reasonable Management Costs,
Heating, Hydro and Water Rates, estimated to be
$7.68 plus GST
for the year 2007 are to be paid
directly by the Landlord and charged back to the Tenant as Additional Rent monthly. These
charges are estimated and subject to adjustment annually based upon actual costs to the
Landlord. The Landlord shall provide to the Tenant a copy of the Budget.
4.04 Rent Past Due
If the Tenant fails to pay, when the same is due and payable, any Minimum Rent or other amount payable by the Tenant under this Lease including Additional Rent as defined in 4.03, such unpaid amounts shall bear interest from the due date thereof to the date of payment at the prime rate of interest as fixed, from time to time, by the Landlord's bank plus two per cent (2%).
4.05 Security Deposit
Contemporaneously with the execution of this Lease, the Tenant has deposited with the Landlord the sum of FOUR THOUSAND EIGHT HUNDRED AND FIFTEEN DOLLARS AND SEVENTY TWO CENTS ($4,815.72) receipt of which is hereby acknowledged by the Landlord. Said deposit shall be held by the Landlord, without liability for interest and applied firstly to the first rent payment due August 1, 2007 and secondly as security for the faithful performance by the Tenant of all of the terms, covenants and conditions of this Lease. If at any time during the Term of this Lease any of the rent herein reserved or any other sum payable by the Tenant to the Landlord hereunder shall be overdue and unpaid, or the Tenant shall fail to keep and perform any of the terms, covenants and conditions of this Lease to be kept and performed by the Tenant, then the Landlord, at its option and in addition to any and all other rights, may appropriate and apply the whole or any portion of the said deposit to the payment of any such overdue rent or other sum, or to compensate the Landlord for loss or damage sustained or suffered by the Landlord as a result of the Tenant's failure to keep and perform any of the aforesaid terms, covenants and conditions of this Lease. Immediately following any such appropriation by the Landlord, the Tenant shall pay as a further deposit that amount necessary to restore the said deposit to its original amount. The appropriation of all or part of the deposit by the Landlord does not stop the Landlord from using its other remedies under this Lease. The said deposit, if not appropriated by the Landlord hereunder, shall be applied to the last month’s rent.
ARTICLE V
TAXES
5.01 Taxes
- Definitions
"Taxes"
means all real property, business, municipal, school and local improvement taxes,
assessments, rates, duties, and levies and all taxes, assessments, rates, duties and
levies, of a like nature imposed in respect of municipal, or any school or public
authority, including any costs and fees incurred by the Landlord in contesting any of the
same in good faith (although this shall not imply any obligation of the Landlord to
contest, object to or litigate the levying or imposition of any Taxes and shall permit the
Landlord to settle, compromise, consent to, waive or otherwise determine in its discretion
any Taxes without notice to, consent of, or approval of the Tenant), but excluding income
of profits taxes upon the income of the Landlord to the extent such taxes are not levied in
lieu of taxes, rates, duties, levies and assessments against the Building or upon the
Landlord in respect thereof, and excluding "Business Taxes" as defined in Section 5.03 and
excluding amounts paid by the Tenant to the Landlord pursuant to Section 5.04 by reason of
the Leased Premises being assessed for the support of separate schools. If the system of
real estate taxation shall be altered or varied and any new tax shall be levied or imposed,
on all or any portion of the Building and/or the revenues therefrom and/or the Landlord in
substitution for and/or in addition to Taxes presently levied or imposed, then any such new
tax or levy shall be deemed to be included in Taxes.
5.02 Taxes Payable by Landlord
The
Landlord shall pay all Taxes which are levied, rated, charged or assessed against the
Building or any part thereof. However, the Landlord may defer payment of any such Taxes, or
defer compliance with any statute, law, by-law, regulation or ordinance in connection with
the levying of any such Taxes, in each case to the fullest extent permitted by law, so long
as it diligently prosecutes any contest or appeal of any such Taxes.
5.03 Goods and Services Taxes
The
Tenant shall be responsible for the payment of any and all federal, provincial or municipal
goods, services or sales taxes that may be assessed or payable, from time to time, as a
result of this Lease.
ARTICLE VI
BUILDING AND COMMON AREAS AND FACILITIES CONTROL
6.0 Control of Building by Landlord
The Landlord shall operate and maintain the Building in such manner as the Landlord determines from time to time, and in a first-class and reputable manner as would a prudent landlord of a similar building having regard to size, age and location. The Building including the Common Areas and Facilities are at all times subject to the exclusive control and management of the Landlord. Without limiting the generality of the foregoing, the Landlord has the right, in its control, management and operation of the Building and by the establishment of Rules and Regulations and general policies with respect to the operation of the Building or any part thereof at all times during and throughout the Term, to:
(a) (i) construct,
maintain and operate lighting facilities; heating, ventilating and air-conditioning
systems; and elevators and other transportation systems during normal business hours as
determined by the Landlord in its sole discretion;
(ii) provide
supervision and policing services for the Building;
(iii) close
all or any portion of the Building to such extent as may, in the opinion of the Landlord's
counsel, be legally sufficient to prevent a dedication thereof or the accrual of any rights
to any Person or the public therein;
(iv) grant,
modify and terminate easements and other agreements pertaining to the use and maintenance
of all or any part of the Building;
(v) obstruct
or close off all or any part of the Building for the purpose of maintenance, repair or
construction;
(vi) employ
all personnel including supervisory personnel and managers necessary for the operation,
maintenance and control of the Building;
(vii) provide
such janitorial and cleaning services for the common areas, excluding the Leased Premises
as the Landlord, in the use of good business judgement considers necessary (the cost of
which shall be included in Operating Costs);
(viii) designate
the areas and entrances and the times in, through and at which loading and unloading of
goods and supplies shall be carried out;
(ix) from
time to time prohibit the Tenant and its employees from parking anywhere on the Parking
Lands. If the Landlord designates parking areas on the Parking Lands or elsewhere, the
Tenant and its employees shall park their vehicles only in such parking areas. The Tenant
shall furnish the Landlord, upon request, with the current license numbers of all vehicles
owned or used by the Tenant and its employees and the Tenant shall, thereafter, notify the
Landlord of any changes within five (5) days after such changes occur. If the Tenant or its
employees part their vehicles in any such prohibited parking areas, the Landlord, in
addition to all rights and remedies hereunder, shall have the right to charge the Tenant a
per diem fee per vehicle parked in any area other than a designated area. Such fee is
payable as Additional Rent on demand. The Landlord reserves the right to impose reasonable
charges upon any Person (including the general public) for the use of the parking
facilities;
(x) designate
the hours during which the doors will be unlocked thereby granting access to the general
public;
(xi) change
the area, or arrangement of the Building or any part thereof;
(xii) construct
other buildings, structures or improvements on or in the Building and make alterations
thereof, additions thereto, subtractions therefrom, or rearrangements thereof, build
additional storeys on any building and construct additional buildings or facilities
adjoining or proximate to the Building;
(xiii) construct
multiple deck, elevated or underground or above ground parking facilities, and expand,
reduce or alter same in any manner whatsoever;
(xiv) relocate
or rearrange the various buildings, parking areas and other parts of the Building from
those existing at the Commencement Date and, with the consent of the Tenant, which consent
shall not be unreasonably withhold, relocate or rearrange the Leased Premises from that
shown on Schedule 'B'. The Tenant hereby acknowledges that the purpose of Schedule "B" is
solely to show the approximate location of the Leased Premises;
(xv) do
and perform such other acts in and to the Building as, in the use of good business
judgement, the Landlord determines to be advisable for the more efficient and proper
operation of the Building;
(xvi) enter
to any such contracts for any or all of the above rights mentioned above, of which the
Management Agreement and Co-Tenancy are two such contracts;
(xvii) provide
adequate facilities for the disposal of the Tenant’s day to day garbage including
access to an exterior garbage bin.
Notwithstanding anything contained in this Lease, it is understood and agreed that if as a
result of the exercise by the Landlord of its right set out in this Section 6.01, the
Common Areas and Facilities are diminished or altered in any manner whatsoever, the
Landlord is not subject to any liability nor is the Tenant entitled to any compensation or
diminution or abatement of Rent, nor is any alteration or diminution of the Common Areas
and Facilities deemed constructive or actual eviction, provided always that Landlord shall
not breach any covenant for quiet enjoyment contained in this Lease.
ARTICLE VII
UTILITIES AND HEATING, VENTILATING AND AIR-CONDITIONING
7.01 Utilities
The
Landlord shall provide standard utilities to the Leased Premises and shall not be liable
for an interruption or cessation of, or a failure in the supply of any utilities, services
or systems in, to or serving the Building or the Leased Premises, caused by others.
7.02 Heating, Ventilating and Air-Conditioning
The
Landlord shall, throughout the Term, operate, maintain and regulate the heating,
ventilating and air-conditioning equipment within the Building during the business hours of
the Tenant in such a manner as to maintain reasonable conditions of temperature and
humidity within the Leased Premises. The Tenant shall comply with the stipulations and with
all Rules and Regulations of the Landlord pertaining to the maintenance and operation of
such equipment.
ARTICLE VIII
USE OF LEASED PREMISES
8.01 Use of Leased Premises
The
Tenant shall use the Leased Premises solely for the purpose of conducting the business of
general offices and the Tenant will not use or permit, or suffer the use of, the Leased
Premises or any part thereof for any other business or purpose.
8.02 Observance
of Law
The
Tenant shall, at its sole cost and expense and subject to Section 10.01 and 10.02 hereof,
promptly;
(a) observe and comply with all
provisions of law including, without limiting and generality of the foregoing, all
requirements of all governmental authorities, including federal, provincial and municipal
legislative enactments, by-laws and other regulations and the requirements of any
professional or governing body having jurisdiction over the Tenant, now or hereafter in
force which pertain to or affect the Leased Premises, the Tenant's use of the Leased
Premises or the conduct of any business in the Leased Premises, or the making of any
repairs, replacements, alternations, additions, changes, substitutions or improvements of
or to the Leased Premises;
(b) observe and comply with all
police, fire and sanitary regulations imposed by any governmental authorities (whether
federal, provincial or municipal), or made by fire insurance underwriters; and
(c) carry out all
modifications, alterations or changes of or to the Leased Premises and the Tenant's conduct
of business in or use of the Leased Premises which are required by any such
authorities.
ARTICLE IX
INSURANCE AND INDEMNITY
9.01 Tenant's
Insurance
(a) The
Tenant shall, throughout the entire Term, at its sole cost and expense, take out and keep
in full force and effect and in the names of the Tenant and the Landlord as their
respective interests may appear, the following insurance:
(i) insurance
upon property of every description and kind owned by the Tenant (other than leasehold
improvements), or for which the Tenant is legally liable, or installed by or on behalf of
the Tenant, and which is located within the Building, including, without limitation,
furniture, fittings, installations, alterations, additions, partitions, fixtures and
anything in the nature of a leasehold improvement, in an amount of not less than 90% of the
full (new) replacement cost thereof, with coverage against at least, the perils of fire and
standard extended coverage including sprinkler leaks (where applicable), earthquake, flood
and collapse and multi-peril on the contents. If there is a dispute as to the amount which
comprises full (new) replacement cost, the decision of the Landlord or the Mortgagee shall
be conclusive;
(ii) public
liability and property damage insurance on an occurrence basis including personal injury
liability, contractual liability, non-owned and owned automobile liability and owners' and
contractors' protective insurance coverage with respect to the Leased Premises and the
Tenant's liability insurance; said coverage to include the activities and operations
conducted by the Tenant and any other Person on the Leased Premises, and by the Tenant and
any other Person performing work on behalf to the Tenant and those for whom the Tenant is
in law responsible in any other part of the Building. Such policies shall be written on a
comprehensive basis with inclusive limits of not less than one million dollars
($1,000,000.00) for bodily injury to any one or more Persons or property damage, and such
higher limits as the Landlord or the Mortgagee reasonably requires from time to time and
shall not be invalidated with respect to the interests of the Landlord and of the Mortgagee
by reason of any breach or violation of any warranties, representations, declarations or
conditions contained in the policies. All such policies must contain a severability of
interests clause, a cross-liability clause and shall be primary and shall not call into
contribution any other insurance available to the Landlord or the Mortgagee;
(iii) business
interruption and extra expense insurance in such amount as a prudent Tenant would
obtain;
(iv) plate
glass insurance, if the Leased Premises are located on the ground floor of the
Building.
(b) All
policies required to be written on behalf of the Tenant pursuant to Sections 9.01 (a) (i),
9.01 (a) (ii), 9.01 (a) (iii), 9.01 (a) (iv) and 9.01 (a) (v) shall:
(i) Contain
the Mortgagee's standard mortgage clause and shall contain a waiver of any
subrogation rights which the Tenant's insurers may have against the Landlord and against
those for whom the Landlord is in law responsible, whether any such damage is caused by the
act, omission or negligence of the Landlord or those for whom the landlord is in law
responsible.
(ii)
Name the Landlord as Additional Named Insured.
(c) All
policies shall be taken out with insurers acceptable to the Landlord and shall be in a form
satisfactory from time to time to the Landlord. The Tenant agrees that certificates of
insurance on the Landlord's standard form or, if required by the Landlord or the Mortgagee,
certified copies of each such insurance policy, will be delivered to the Landlord as soon
as practicable after the placing of the required insurance. All policies shall contain an
undertaking by the insurers to notify the Landlord and the Mortgagee in writing not less
than thirty (30) days prior to any material change, cancellation, termination
thereof.
(d) The
Tenant agrees that if the Tenant fails to take out or to keep in force any such insurance
referred to in this Section 9.01, or should any insurance not be approved by either the
Landlord or the Mortgagee and should the Tenant not rectify the situation within
forty-eight (48) hours after written notice by the Landlord to the Tenant (stating if the
Landlord or the Mortgagee does not approve of such insurance, the reasons therefor) the
Landlord has the right without assuming any obligation in connection therewith, to effect
such insurance at the sole cost of the Tenant and all outlays by the Landlord shall be
immediately paid by the Tenant to the Landlord as Rent on the first day of the next month
following said payment by the Landlord without prejudice to any other rights and remedies
of the Landlord under this lease.
9.02 Increase in Insurance Premiums
The
Tenant shall not keep, use, sell or offer for sale in or upon the Leased Premises any
article which may be prohibited by any fire insurance policy in force from time to time
covering the Building. If (a) the occupancy of the Leased Premises; (b) the conduct of
business in the Leased Premises; (c) the possession of any goods or materials in or on the
Leased premises (whether or not the Landlord had consented to the possession of such goods
or materials in the Leased Premises or in any other portion of the Building where permitted
by the Landlord); or (d) any acts or omissions of the Tenant in the building or any part
thereof, causes or results in any increase in premiums for the insurance carried from time
to time by the Landlord with respect to the Building which can reasonably be attributed to
any of (a), (b), (c) or (d) by the Tenant, the Tenant shall pay any such increase in
premium ad Additional Rent forthwith after invoices for such additional premiums are
rendered by the Landlord. In occupancy of the Leased Premises, or the possession of any
article therein or therefrom, a schedule issued by the organization computing the insurance
rate on the Building showing the various components of such rate shall be conclusive
evidence of the several items and charges which make up such rate. The Tenant shall comply
promptly with all requirements of the Insurer's Advisory Organization or of any insurer now
or hereafter in effect, pertaining to or affecting the Leased Premises.
9.03 Cancellation of Insurance
If
any insurance policy upon the Building or any part hereof shall be canceled or shall be
threatened by the insurer to be canceled, or the coverage thereunder reduced in any way by
the insurer by reason of the use and occupation of the Leased Premises or any part thereof
by the Tenant or by any assignee or sub-tenant of the Tenant, or by anyone permitted by the
Tenant to be upon the Leased Premises, and of the Tenant fails to remedy the condition
giving rise to cancellation, threatened cancellation, or reduction of coverage within
forty-eight (48) hours after notice thereof by the Landlord, the Landlord may, at its
option, either (a) reenter and take possession of the Leased Premises forthwith by leaving
upon the Leased Premises a notice in writing of its intention so to do and thereupon the
landlord shall have the same rights and remedies as are contained in Article XV, or (b)
enter upon the Leased Premises and remedy the condition giving rise to such cancellation,
threatened cancellation or reduction, and the Tenant shall forthwith pay the cost thereof
to the Landlord, which cost may be collected by the Landlord as Rent and the Landlord shall
not be liable for any damage or injury caused to any property of the Tenant or of others
located on the Leased Premises as a result of any such entry. The Tenant agrees that any
such entry by the Landlord is not a re-entry or a breach of any covenant for quiet
enjoyment contained in this Lease.
9.04 Loss or Damage
The Landlord shall not be liable for any death or injury arising from or out of any occurrence in, upon, at, or relating to the Building, or damage to property of the Tenant or of others located on the Leased Premises, nor shall it be responsible for any loss of or damage to any property of the Tenant or others from any cause whatsoever, unless any such death, injury, loss or damage results from the negligence or willful wrongful act of the Landlord, its agents, servants or employees or other Persons for whom it may, in law, be responsible. All property of the Tenant kept or stored on the Leased Premises shall be so kept or stored at the risk of the Tenant only and the Tenant shall indemnify the Landlord and save it harmless from any claims arising out of any damages to the same, including, without limitation, any subrogation claims by the Tenant's insurers.
9.05
Landlord's Insurance
The
Landlord shall, at all times throughout the Term carry (a) insurance on the Building and
the machinery, boilers and equipment contained therein and owned by the Landlord
(specifically excluding any property with respect to which the Tenant and other Tenants are
obliged to insure pursuant to Section 9.01 or similar sections of their respective leases,
but including leasehold improvements installed on the Premises with the approval of the
Landlord) against damage by fire and extended perils coverage in such reasonable amounts
and with such reasonable deductions as would be carried by a prudent owner of a reasonably
similar building, having regard to size, age and location; (b) public liability and
property damage insurance with respect to the Landlord's operations in the Building in such
reasonable amounts and with such reasonable deductions as would be carried by a prudent
owner of a reasonably similar building, having regard to size, age and location; and (c)
such other form or forms of insurance as the Landlord or the Mortgagee reasonably considers
advisable. Notwithstanding any contribution by the Tenant to the cost of insurance premiums
provided herein, the Tenant acknowledges and agrees that no insurable interest is conferred
upon the Tenant under any policies of insurance carried by the Landlord and the Tenant has
no right to receive any proceeds of any such insurance policies carried by the
Landlord.
9.06 Indemnification
of Landlord
Notwithstanding
any other terms, covenants and conditions contained in this Lease including, without
limitation, the Landlord's obligations to repair set out in Section 10.03; and the
Landlord's obligations to take out insurance set out in Section 9.05; the Tenant shall
indemnify the Landlord and save it harmless from and against any and all loss (including
loss of all Rent payable by the Tenant pursuant to this Lease), claims, actions, damages,
liability and expenses in connection with loss of life, personal injury, damage to property
or any other loss or injury whatsoever arising from or out of this Lease, or any occurrence
in, upon or at the Leased Premises, or the occupancy or use by the Tenant of the Leased
Premises, or any part thereof, or occasioned wholly or in part by any wrongful act or
omission of the Tenant or by anyone employed by the Tenant or by anyone permitted to be on
the Leased Premises by the Tenant. If the Landlord shall, without fault on its part, be
made a party to any litigation commenced by or against the Tenant, then the Tenant shall
protect, indemnify and hold the Landlord harmless and shall pay all costs, expenses and
reasonable legal fees incurred or paid by the Landlord in connection with such litigation
if the Tenant is found at fault. The Tenant shall also pay all costs, expenses and legal
fees (on a solicitor and his client basis) that may be incurred or paid by the Landlord in
enforcing the terms, covenants and conditions in this Lease, if the Tenant is found at
fault.
ARTICLE X
MAINTENANCE, REPAIRS AND ALTERATIONS
10.01 Maintenance and Repairs by
The Tenant shall, at all times during the Term at its sole cost, keep and maintain in good order, first-class condition and repair (which shall include periodic painting and decorating) as determined by the Landlord, and shall, subject to Sections 10.02 and 10.03, make all needed repairs and replacements thereto with due diligence and dispatch to and for the whole of the Leased Premises. Landlord shall be responsible for all structural repairs, including roof, foundations, floors and load-bearing walls.
10.02 Landlord's
Approval of Tenant's Repairs
The
Tenant shall not make any repairs, alterations, replacements, decorations or improvements
to any part of the Leased Premises without first obtaining the Landlord's written approval.
Any such repair, replacement, alteration, decoration or improvement made by the Tenant
without the prior written consent of the Landlord or which is not made in accordance with
the drawings and specifications approved by the Landlord shall, if requested by the
Landlord, be promptly removed by the Tenant at the Tenant's expense and the Leased Premises
restored to their previous condition. Upon execution of this lease and before the
commencement date, the Landlord and Tenant shall complete the work as set out in Schedule
"C".
Notwithstanding anything
contained in this Lease including, without limitations, Section 10.01, if any such repairs,
alterations, decorations, additions or improvements to the Leased Premises or to any
improvements installed by or on behalf of the Tenant for the benefit of the Leased Premises
which are approved by the landlord, affect the structure of the Leased Premises or any part
of the Building other than the Leased Premises, such work shall be performed only by the
Landlord, at the Tenant's sole cost and expense. Upon completion thereof, the Tenant shall
pay to the Landlord, upon demand as Rent, both the Landlord's costs relating to any such
repairs, alterations, decorations, additions or improvements including the fees of any
architectural and engineering consultants plus a sum equal to fifteen percent (15%) of the
total cost thereof representing the Landlord's overhead. No repairs, alterations,
additions, decorations or improvements to the Leased Premises or on behalf of the Tenant
shall be permitted which may weaken or endanger the structure or adversely affect the
condition or operation of the Leased Premises of the Building or diminish the value
thereof, or restrict or reduce the Landlord's coverage for zoning purposes.
10.03 Maintenance by Landlord
The
Landlord shall, at all times throughout the Term, but subject to Article XI maintain and
repair, or cause to be maintained and repaired, as would a prudent owner of a reasonably
similar building, the Common Areas and Facilities and structure of the Building, including,
without limitation, the foundations, exterior weather walls, floors, roof, bearing walls,
and structural columns and beams of the Building. The cost of such maintenance and repairs
shall be paid by the Landlord, unless the Tenant is required to make such repairs by reason
of the application of laws or ordinances or the direction, rules or regulations of any
regulatory body, or, of any act, omission to act, neglect or default of the Tenant, or
those for whom the Tenant is in law responsible, in which event the Tenant shall be liable
and responsible for the total cost of any such repairs plus a sum equal to fifteen percent
(15%) thereof representing the Landlord's overhead, which shall immediately become due and
payable to the Landlord. The Tenant shall be liable and responsible for the cost of any
repairs required to be made by the Landlord and which result from any of the circumstances
referred to in the immediately preceding sentence.
If the Tenant refuses or
neglects to carry out any repairs properly as required pursuant to the Section 10.01
hereof, and to the reasonable satisfaction of the Landlord, the Landlord may, but shall not
be obliged to make such, and upon completion thereof, the Tenant shall pay to the Landlord
upon demand as Rent, both the Landlord's costs relating to any such repairs plus a sum
equal to fifteen percent (15%) thereof representing the Landlord's overhead. The Tenant
agrees that the making of any repairs by the Landlord pursuant to this Section 10.03 is not
a re-entry or a breach of any covenant for quiet enjoyment contained in this Lease.
10.04 Repair on Notice
In
addition to the obligations of the Tenant contained in Section 10.01 hereof, the Tenant
shall effect all repairs referred to therein according to notice from the Landlord but
failure to give notice shall not relieve the Tenant from its obligation to repair.
10.05 Limited Make Good
Tenant
shall not be required to restore the Premises to the original base Building standard or
original condition as it was on prior to the commencement date at the expiry of the Term of
the Lease save and except for any non-standard office construction. Landlord will advise
the Tenant as to what it considers to be non-standard items that will be subject to being
made good before they are built, acting reasonably.
10.06 Repair Where Tenant at Fault
Notwithstanding any other terms, covenants and conditions contained in this Lease including, without limitation, the Landlord's obligations to take out insurance set out in Section 9.05, if the Building or any part thereof, including without limitation, the Common Areas and Facilities (including those Common Areas and Facilities within or passing through the Leased Premises), or any equipment, machinery, facilities or improvements contained therein or made thereto, or the roof or outside walls of the Building or any other structural portions thereof require repair or become damaged or destroyed through the negligence, carelessness or misuse of the Tenant, the cost of the resulting repairs, replacements or alterations plus a sum equal to fifteen percent (15%) of the cost thereof representing the Landlord's overhead shall be borne by the Tenant, who shall pay the sum to the Landlord as Rent forthwith upon presentation of an account of such expenses incurred by the Landlord.
10.07 Not to Overload Floors
The
Tenant shall not bring upon the Leased Premises or any part thereof, any machinery,
equipment, article or thing that by reason of its weight, size or use, might in the opinion
of the Landlord damage the Leased Premises and shall not at any time overload the floors of
the Leased Premises. If any damage is caused to the Leased Premises by any machinery,
equipment, object or thing or by overloading, or by any act, neglect, or misuse of the part
of the Tenant, or any of its servants, agents or employees, or any Person having business
with the Tenant, the Tenant will forthwith repair the same, or at the option of the
Landlord, pay the Landlord forthwith on demand the cost of making good the same.
10.08 Removal and Restoration by
(a) All
alterations, decorations, additions and improvements made by the Tenant, or made by the
Landlord on the Tenant's behalf (other than the Tenant's trade fixtures), shall immediately
become the property of the Landlord without compensation therefor to the Tenant. Such
alterations, decorations, additions, or improvements shall not be removed from the Leased
Premises either during or at the expiration or earlier termination of the Term except that
the Tenant may during the Term in the usual or normal course of its business and with the
prior written consent of the Landlord remove its trade fixtures, provided such trade
fixtures have become excess for the Tenant's purposes or the Tenant is substituting new and
similar trade fixtures therefor, and provided that in each case, (1) the Tenant is not in
default under this Lease; and (2) such removal is done at the Tenant's sole cost and
expense; and
(b) If the Tenant does not remove
its trade fixtures at the expiration or earlier termination of the Term, the trade fixtures
shall, at the option of the Landlord, become the property of the Landlord and may be
removed from the Leased Premises and sold or disposed of by the Landlord in such manner as
it deems advisable.
(c) The Tenant shall, in case
of every such installation or removal either during or at the expiration of the Term effect
the same at times designated by the Landlord and promptly make good any damage caused to
the Leased Premises or the Building by the installation or removal of any such alteration,
decoration, addition or improvement.
(d) For greater certainty, the
Tenant's trade fixtures shall not include any (i) heating, ventilating or air-conditioning
systems, facilities and equipment in, or serving the Leased Premises; (ii) floor covering
affixed to the floor of the Leased Premises; (iii) light fixtures; and (iv) wall partitions
and doors.
10.09 Notice by
The
Tenant shall, when it becomes aware of same or when the Tenant, acting reasonably, should
have become aware of same, notify the Landlord of any damage to, or deficiency or defect in
any part of the building, including the Leased Premises, any equipment or utility systems,
or any installations located therein, notwithstanding the fact that the Landlord may have
no obligations with respect to same.
10.10 To Discharge all Liens
The
Tenant shall at all times throughout the term promptly pay all its contractors,
materialmen, suppliers and workmen and all charges incurred by or on behalf of the Tenant
for any work, materials or services which may be done, supplied or performed at any time in
respect of the Leased Premises and the Tenant shall do any and all things necessary so as
to ensure that no lien is registered against the Building or any part thereof or against
the Tenant's interest in the Leased Premises and if any such lien is made, filed or
registered, the Tenant shall discharge it or cause it to be discharged forthwith at the
Tenant's expense.
If the Tenant fails to
discharge or cause any such lien to be discharged as aforesaid, then, in addition to any
other right or remedy of the Landlord, the Landlord may, but it shall not be obligated to
discharge the same by paying the amount claimed to be due into Court or directly to any
such lien claimant and the amount so paid by the Landlord and all costs and expenses
including solicitor's fees (on a solicitor and his client basis) incurred for the discharge
of such lien shall be immediately due and payable by the Tenant to the Landlord on demand
Rent.
10.11 Signs
and Advertising
The
Tenant shall not paint, affix, display or cause to be painted, affixed or displayed, any
sign, picture, advertisement, notice, lettering or decoration on any part of the exterior
of the Leased Premises or on the inside or any exterior window without, in each instance,
obtaining the prior written approval of Landlord which may be unreasonably withheld. The
Landlord shall install and maintain, at its expense, building standard signage including
podium signage, if any, internal building signage as required including the building
directory boards and signage directly adjacent to the Premises, but excluding brass plate
signage at the building main entrances.
ARTICLE XI
DAMAGE AND DESTRUCTION AND EXPROPRIATION
11.01 Destruction of Leased Premises
(a) If
the Building is at any time destroyed or damaged, (including smoke damage) as a result of
fire, the elements, accident or other casualty required to be insured against by the
Landlord pursuant to Section 9.05 hereof or otherwise insured against by the Landlord and
not caused by the Tenant, and if as a result of such occurrence:
(i) the
Leased Premises are rendered unable only in part, this Lease shall continue in full force
and effect and the Landlord shall, subject to Section 11.02 (a) hereof, commence diligently
to reconstruct, rebuild or repair the Leased Premises to the extent that the Leased
Premises are put back in the same condition as they were upon completion of the Landlord's
Work set out in Schedule "C", and only Rent shall xxxxx proportionately to the portion of
the Leased Premises rendered unable to be occupied from the date of the destruction or
damage to the date the Leased Premises have been restored.
(ii) the
Leased Premises are rendered wholly unable to be occupied, the Landlord shall, subject to
Section 11.02 (a) hereof, commence diligently to reconstruct, rebuild or repair the Leased
Premises to the extent that the Leased Premises are put back in the same condition as they
were upon completion of the Landlord's work as set out in Schedule "C", and only gross rent
shall xxxxx entirely from the date of the destruction or damage to the date the Leased
Premises have been restored.
(iii) the
Leased Premises are not rendered unable to be occupied in whole or in part, the Lease shall
continue in full force and effect, the Rent and other amounts payable by the Tenant shall
not terminate, be reduced or xxxxx and the Landlord shall, subject to Section 11.02(a)
hereof, commence diligently to reconstruct, rebuild or repair the Leased Premises to the
extent that the Leased Premises are put back in the same condition as they were upon
completion of the Landlord's Work as set out in Schedule "C".
(b) Upon the Tenant being
notified in writing by the Landlord that the Landlord's work as set out in Schedule "C" has
been substantially completed, the Tenant shall forthwith complete all Tenant's Work
including, without fully restore the Leased Premises for business fully fixtured, (in any
case, without the benefit of any capital allowance or payments made at the time of original
construction by the Landlord to the Tenant in connection with the work set out in Schedule
"C"). The Tenant shall complete the Tenant's Work within thirty (30) days after notice that
the Landlord's Work is substantial completed.
(c) Nothing in this Section
11.01 requires the Landlord to rebuild the Leased Premises in the condition and state that
existed before any such occurrence.
11.02 Destruction of Building
(a) Notwithstanding
anything contained in this Lease and specifically notwithstanding the provisions of Section
11.01 hereof, if:
(i) Twenty-five
percent (25%) or more of the Rentable Area of the building is at any time destroyed or
damaged (including smoke damage) as a result of fire, the elements, accident or other
casualty, whether or not the Leased Premises are affected by such occurrence, then so often
as any such event occurs, the Landlord may, at its option (to be exercised by written
notice to the Tenant within thirty (30) days following any such occurrence), elect to
terminate this Lease. In the case of such election, the Term and Tenancy hereby created
shall expire on the thirtieth (30th) day after such notice is given, without indemnity or
penalty payable or any other recourse by one party to or against the other and the Tenant
shall, within such thirty (30) day period, vacate the Leased Premises and surrender the
same to the Landlord with the Landlord having the right to re-enter and repossess the
Leased Premises discharged of this Lease and to expel all Persons and remove all property
therefrom. Rent shall be due and payable without reduction or abatement subsequent to the
destruction or damage and until the date of termination, unless the Leased Premises shall
have been destroyed or damaged as well, in which event Section 11.01 shall apply.
(b) If all or any part of the
building is at any time destroyed or damaged as set out in Section 11.02(a), and the
Landlord does not elect to terminate this Lease in accordance with the rights hereinbefore
granted, the Landlord shall, following such destruction or damage, commence diligently to
reconstruct, rebuild or repair, the Building, but only to the extent of the Landlord's
responsibilities pursuant to the terms of the various leases for the premises in the
building and exclusive of any Tenant's responsibilities set out therein. If the Landlord
elects to repair, reconstruct or rebuild the building or any part hereof, the Landlord may
use plans and specifications and working drawings other than those used in the original
construction of the building or any part thereof.
11.03 Expropriation
Both the Landlord and the Tenant agree to co-operate with each other in respect of any expropriation of all or any part of the Leased Premises or any other part of the building, so that each may receive the maximum award in the case of any expropriation to which they are respectively entitled at law. If and to the extent that any portion of the Building other than the Leased Premises is expropriated, then the full proceeds accruing therefrom or awarded as a result thereof, shall belong solely to the Landlord and the Tenant will abandon or assign to the Landlord any rights which the Tenant may have or acquire by operation of law to such proceeds or aware and will execute such documents as in the opinion of the Landlord are or may be necessary to give effect to this intention. If at any time during the Term, more than twenty percent (20%) of the Rentable Area of the building is acquired or expropriated by any lawful expropriating authority, then in any of such events, at the option of the Landlord, this Lease shall cease and terminate as of the date the interest acquired or expropriated vests in such expropriating authority and the Tenant shall have no claim against the Landlord for the value of any unexpired Term or for damages or for any reason whatsoever. If the Landlord does not so elect to cancel this Lease by notice as aforesaid, this Lease shall continue in full force and effect without any reduction or abatement of rent, provided that if any part of the Leased Premises is expropriated and as a result thereof the area of the Leased Premises is reduced, then the Rentable Area of the Leased Premises shall be adjusted to take into account any such reduction in area, and the Minimum Rent payable by the pursuant to Section 4.02 hereof shall be adjusted on the basis of the rental rate set out therein.
ARTICLE XII
ASSIGNMENT AND SUBLETTING
12.01 Consent Required
The
Tenant will not assign this Lease in whole or in part, nor sublet all or any part of the
Leased Premises, nor mortgage or encumber this Lease or the Leased Premises or any part
thereof, nor suffer or permit the occupation of, or part with or share possession of all or
any part of the Leased Premises by any Person (all of the foregoing being hereinafter
collectively referred to as a "Transfer"), without the prior written consent of the
Landlord in each instance, which consent may not be unreasonably withheld. The consent by
the Landlord to any Transfer, if granted, shall not constitute a waiver of the necessity
for such consent to any subsequent Transfer. This prohibition against a transfer is
construed so as to include a prohibition against any Transfer by operation of law and no
Transfer shall take place by reason of a failure by the Landlord to reply to a request by
the Tenant for consent to a Transfer.
If there is a permitted
Transfer of this Lease, the Landlord may collect rent from the assignee, sub or occupant
(all of the foregoing being hereinafter collectively referred to as the "Transferee"), and
apply the next amount collected to the Rent required to be paid pursuant to this Lease, but
no acceptance by the Landlord of any payments by a Transferee shall be deemed a waiver of
this covenant, or the acceptance of the Transferee as Tenant, or a release of the Tenant
from the further performance by the Tenant of the covenants or obligations on the part of
the Tenant herein contained. Any document or consent evidencing such transfer of this Lease
is permitted or consented to by the Landlord shall be prepared by the Landlord or its
solicitors, and all reasonable legal and administrative costs with respect thereto shall be
paid by the Tenant to the Landlord forthwith upon demand. Any consent by the Landlord shall
be subject to the Tenant causing any such Transferee to promptly execute an agreement
directly with the Landlord agreeing to be bound by all of the terms, covenants and
conditions in this Lease as if such transferee had originally executed this Lease as
Tenant. Notwithstanding any such Transfer permitted or consented to by the Landlord, the
Tenant shall be jointly and severally liable with the Transferee on this Lease and shall
not be released from performing any of the terms, covenants and conditions of this
Lease.
12.02 Corporate Ownership
If the Tenant is a corporation or if the Landlord consented to a Transfer of this Lease to a corporation, any transfer or issue by sale, assignment, bequest, inheritance, operation of law or other disposition, or by subscription, from time to time of all or any part of the corporate shares of the Tenant or of any parent or subsidiary corporation of the Tenant or any corporation which is an associate or affiliate of the Tenant (as those terms are defined pursuant to the Business Corporations Act, 1982 (Ontario) and amendments thereto), which results in any change in the present effective voting control of the Tenant by the Person holding such voting control at the date of execution of the Lease (or at the date a Transfer of this Lease to a date of execution of the Lease (or at the date a Transfer of this Lease to a corporation is permitted) and which does not receive the prior written consent of the Landlord in each instance, which consent may not be unreasonably withheld, entitles the Landlord to terminate this Lease upon five (5) days' written notice to the Tenant given within sixty (60) days after the date the Landlord becomes aware of such transfer. The Tenant shall make available to the Landlord, or its lawful representatives, all corporate books and records of the Tenant for inspection at all reasonable times, in order to ascertain whether there has been any change in control.
However, this Section 12.02
shall not apply to the Tenant if at such time (a) the Tenant is a public corporation whose
shares are traded and listed on any recognized stock exchange in Canada or in the Unites
States; or (b) the Tenant is a private corporation but is controlled by a public
corporation defined as aforesaid; so long as in either case prior to or as soon as
reasonably possible thereafter, the Landlord has received assurances satisfactory to the
Landlord that there will be continuity of the existing management of the Tenant, and of its
business practices and policies notwithstanding any such sale, transfer or other
disposition of controlling shares.
12.03 Assignment by Landlord
In
the event of the sale or lease by the Landlord of the building or any part thereof, or the
assignment by the Landlord of this Lease or any interest of the Landlord hereunder, and to
the extent that such purchaser or assignee assumes the covenants and obligations of the
Landlord hereunder, the Landlord shall, thereupon and without further agreement be freed
and relieved of all liability with respect to such covenants and obligations.
12.04 Profit Rents Upon Transfers
In the event of any Transfer by the Tenant by virtue of which the Tenant
receives a rent in the form of cash, goods or services from the Transferee which is greater
than the Rent payable hereunder to the Landlord, the Tenant shall pay any such excess to
the Landlord in addition to all Rent payable under this Lease, and such excess rent shall
be deemed to be further Rent payable hereunder.
ARTICLE XIII
ACCESS AND ALTERATIONS
13.01 Right of Entry
(a) The
Landlord and its agents have the right to enter the Leased Premises at all times to examine
the same and to make such repairs, alterations, changes, adjustments, improvements or
additions to the Leased Premises or the Building or any part thereof or any adjacent
property as the Landlord considers necessary or desirable, including without limitation,
the pipes, conduits, wiring, ducts and other installations of any kind in the Leased
Premises where necessary to serve the Leased Premises or another part of the building, and
for such purpose, the Landlord may take all material into and upon the Leased Premises
which is required therefor without the same constituting a re-entry or a breach of any
covenant for quiet enjoyment contained in this Lease or of any statutory provision. The
Rent required to be paid pursuant to this Lease shall not xxxxx or be reduced while any
such repairs, alterations, changes, adjustments, improvements or additions are being made
due to loss or interruption of business of the Tenant or otherwise, and the Landlord shall
not be liable for any damage, injury or death caused to any Person or property of the
Tenant or of others located on the Leased Premises as a result of such entry.
(b) The
Landlord and its agents have the right to enter the Leased Premises at all times to show
them to prospective purchasers, lessees or mortgagees and during the twelve (12) months
prior to the expiration of the Term, the Landlord may place upon the Leased Premises the
usual "For Rent" or "For Sale" notices which the Tenant shall permit to remain thereon
without molestation or complaint.
(c) If
the Tenant is not personally present to open and permit an entry into the leased Premises,
at any time, when for any reason an entry therein is necessary or permissible, the Landlord
or its agents may forcibly enter the same, without rendering the Landlord or such agents
liable therefor, and without in any manner affecting the obligations and covenants of this
Lease. Nothing herein contained, however, is deemed or construed to impose upon the
Landlord any obligation, responsibility or liability whatsoever for the care, maintenance
or repair of the Leased Premises, or any part thereof, except as otherwise herein
specifically provided. The Tenant agrees that any entry by the Landlord upon the Leased
Premises in accordance with this Section 13.01 is not a re-entry or a breach of any
covenant for quiet enjoyment contained in this Lease.
13.02 Excavation
If
an excavation is made upon land adjacent to the Leased Premises, or is authorized to be
made by the Landlord or its duly authorized representatives, the Tenant shall grant the
person making or authorized to make such excavation, permission to enter upon the Leased
Premises for the purpose of doing such work as the Landlord considers necessary to preserve
the walls of the building of which the Leased Premises form a part from injury or damage
and to support the same in any appropriate manner, without giving rise to any claim for
damages or indemnification against the Landlord or any diminution or abatement of Rent. The
Tenant agrees that any work or undertaking by or on behalf of the Landlord pursuant to this
Section 13.02 is not a re-entry or breach of any covenant for quiet enjoyment contained in
this Lease.
ARTICLE XIV
STATUS STATEMENT, ATTORNMENT AND
SUBORDINATION
14.01 Status
Statement
Within
ten (10) days after written request therefor by the Landlord, or if upon any sale,
assignment, lease or mortgage of the Leased Premises or the land thereunder or the building
by the Landlord or by the owner of the Building, a status statement is required from the
Tenant, the Tenant shall deliver in a form supplied by the Landlord, a status statement or
a certificate to any proposed mortgagee or purchaser, or to the Landlord, stating (if such
is the case):
(a) that this Lease is
unmodified and in full force and effect (or if there have been modifications, that this
Lease is in full force and effect as modified and identifying the modification agreements)
or if this Lease is not in full force and effect, the certificate shall so state;
(b) the Commencement Rent;
(c) the date to which Rent has
been paid under this Lease;
(d) whether or not there is any
existing default by the Tenant in the payment of any rent or other sum of money under this
Lease, and whether or not there is any other existing or alleged default by either party
under this Lease with respect to which a notice of default has been served and if there is
any such default, specifying the nature and extent thereof;
(e) whether there are any
set-offs, defenses or counter claims against enforcement of the obligations to be performed
by the Tenant under this lease; and,
(f) with reasonable
particularity, details respecting the Tenant's financial standing and corporate
organization.
14.02 Subordination and Attornment
(a) It
is a condition of this Lease and the Tenant's rights granted hereunder, that this Lease and
all of the rights of the Tenant hereunder are, and shall at all times be, subject and
subordinate to any and all mortgages, debentures, trust deeds or the charge or lien
resulting from, or any instruments of, any financing, refinancing or collateral financing
or any renewals or extensions thereof from time to time in existence against the lands,
buildings and improvements forming the Leased Premises or the building. Upon request, the
Tenant shall subordinate this Lease and all of its rights hereunder in such form as the
Landlord requires to any and all mortgages, debentures, trust deeds or the charge or lien
resulting from, or any instrument of, any financing, refinancing or collateral financing
and to all advances made or hereafter to be made upon the security thereof, and, if
requested, the Tenant shall attorn to the holder thereof or to the registered owners of the
Building, provided always so long as Tenant is not in default of its obligations arising
under this Lease that any such holder shall recognize the rights of Tenant under this
Lease.
14.03 Attorney
The
Tenant shall, upon request of the Landlord or the Mortgagee or any other Person having an
interest in the building, execute promptly such instruments or certificates to carry out
the intent of Section 14.02 and 16.10 as are requested by the Landlord.
ARTICLE XV
DEFAULT
15.01 Right to Re-enter
Proviso
for re-entry by the Landlord on non-payment of rent or non-performance of covenants.
Without limiting the generality of the foregoing, if;
(a) the Tenant fails to pay any
Rent or other sums due hereunder on the day or dates appointed for the payment thereof
(provided the Landlord first gives five (5) days' written notice to the Tenant of any such
failure); or
(b) the Tenant fails to observe
or perform any other of the terms, covenants or conditions of this Lease to be observed or
performed by the Tenant (provided the Landlord first gives to the Tenant ten (10) days', or
such shorter period of time as is otherwise provided herein, written notice, or, no notice
in case of a real or apprehended emergency, of any such failure to perform, and, the
Tenant, within such period, fails to commence diligently and thereafter to proceed
diligently to cure any such failure to perform); or
(c) the Tenant or any
Indemnifier of this Lease or any Person occupying the leased Premises or any part thereof
or any licensee, concessionaire or franchisee operating a business in the Leased Premises
becomes bankrupt or insolvent or takes the benefit of any act now or hereafter in force for
bankrupt or insolvent debtors or files any proposal or makes any assignment for the benefit
of creditors or any arrangement or compromise; or
(d) a receiver or a receiver
and manager is appointed for all or a portion of the Tenant's property or any such
Indemnifier's occupant's, licensee's, concessionaire's or franchisee's property; or
(e) any steps are taken or any
action or proceedings are instituted by the Tenant or by any other party including without
limitation, any court or governmental body of competent jurisdiction for the dissolution,
winding-up or liquidation of the Tenant's or its assets; or
(f) the Tenant makes a sale in
bulk (other than a bulk sale made to an assignee or sublessee pursuant to a permitted
assignment or subletting hereunder and pursuant to the Bulk Sales Act of Ontario); or
(g) the Tenant abandons or
attempts to abandon the Leased Premises; or
(h) the Tenant transfers or
permits the occupation of all or any part of the Leased Premises by any one except in a
manner permitted by this Lease; or
(i) this Lease or any of the
Tenant's assets are taken under any writ of execution; or
(j) re-entry is permitted under
any other terms of this Lease;
than the Landlord, in addition to any other rights or remedies it has pursuant to this
Lease or by law, has, to the extent permitted by law, the immediate right of re-entry upon
the Leased Premises and may re-enter the Leased Premises, and any or all of the Tenant's
property may be removed and sold or disposed of by the Landlord as it deems advisable or
may be stored in a public warehouse or elsewhere at the cost and for the account of the
Tenant, all without services of notice or resort to legal process and without the Landlord
being considered guilty of trespass or becoming liable for any loss or damage which may be
occasioned thereby.
15.02 Right to Relet
If
the Landlord elects to re-enter the Leased Premises as herein provided, or if it takes
possession pursuant to legal proceedings or pursuant to any notice provided for by law, it
may either terminate this Lease or it may from time to time without terminating this Lease,
make such alterations and repairs as are necessary in order to relet the Leased Premises,
or any part thereof for such term or terms (which may be for a term extending beyond the
term) and at such rent and upon such other terms, covenants and conditions as the Landlord
in its sole discretion considers advisable. Upon each such reletting all Rent received by
the Landlord from such reletting shall be applied, first to the payment of any indebtedness
other than Rent due hereunder from the Tenant to the Landlord; second to the payment of any
costs and expenses of such reletting including brokerage fees and solicitor's fees and of
costs of such alterations and repairs; third, to the payment of Rent due and unpaid
hereunder; and the residue, if any, shall be held by the Landlord and applied in payment of
future rent as the same becomes due and payable hereunder. If such rent received from such
reletting during any months is less than that to be paid during that month by the Tenant
hereunder the Tenant shall pay any such deficiency which shall be calculated and paid
monthly in advance on or before the first day of each and every month. No such re-entry or
taking possession of the Leased Premises by the Landlord shall be construed as an election
on its part to terminate this Lease unless a written notice of such intention is given to
the Tenant. Notwithstanding any such reletting without termination, the Landlord may at any
time thereafter elect to terminate this Lease for such previous breach. If the Landlord at
any time terminates this Lease for any breach, in addition to any other remedies it may
have, it may recover from the Tenant all damages it incurs by reason of such breach,
including the cost of recovering the Leased Premises, solicitor's fees (on a solicitor and
his client basis) and including the worth at the time of such termination of the excess, if
any, of the amount of Rent required to be paid pursuant to this Lease for the remainder of
the stated Term over the then reasonable rental value of the Leased Premises for the
remainder of the stated Term, all of which amounts shall be immediately due and payable by
the Tenant to the Landlord.
In any of the events referred
to in Section 15.01 hereof, in addition to any and all other rights, including the rights
referred to in this section and in Section 15.01 hereof, the full amount of the current
month's installment of Minimum Rent plus the current months installment on account of
Additional Rent and any other payments required to be made monthly hereunder, together with
the next three (3) months' installments of Minimum Rent plus the current months installment
on account of Additional Rent and such aggregate payments for the next three (3) months,
all of which shall be deemed to be accruing due on a day-to-day basis, shall immediately
become due and payable as accelerated Rent, and the Landlord may immediately distrain for
the same, together with any arrears then unpaid.
15.03 Expenses
If legal action is brought for recovery of possession of the Leased Premises, for the recovery of Rent or any other amount due under this Lease, or because of the breach of any other terms, covenants or conditions herein contained on the part of the Tenant to be kept or performed, and a breach is established, the Tenant shall pay to the Landlord all expenses incurred therefor, including all solicitors fees (on a solicitor and his client basis), unless a court shall otherwise award.
15.04 Removal of Chattels
In
case of removal by the Tenant of the goods and chattels of the Tenant from the Leased
Premises, the Landlord may follow same for thirty (30) days in the same manner as is
provided for in the Landlord and Tenant Act (Ontario).
15.05 Waiver of Exemption from Distress
The
Tenant hereby agrees with the Landlord that notwithstanding anything contained in Section
30 of Chapter 232 of the Revised Statutes of Ontario, 1980, or any other Statute
subsequently passed to take the place of or amend the said Act, none of the goods and
chattels of the Tenant at any time during the continuance of the Term hereby created on the
Leased Premises shall be exempt from levy by distress for rent in arrears by the Tenant as
provided for by any Section or Sections of the said Act or any amendments thereto, and that
if any claim is made for such exemption by the Tenant or if a distress is made by the
Landlord, this covenant and agreement may be pleaded as an estoppel against the Tenant in
any action brought to test the right to the levying upon any such goods as are named as
exempted in said Section or Sections of the said Act or amendment or amendments thereto;
the Tenant waiving, as it hereby does all and every benefit that could or might have
accrued to the Tenant under and by virtue of the said Section or Sections of the said Act,
or any amendment or amendments thereto but for this covenant.
15.06 Landlord May Cure Tenant's Default or Perform Tenant's Covenants
If
the Tenant fails to pay, when due, any amounts or charges required to be paid pursuant to
this Lease, the Landlord after giving five (5) days' notice in writing to the Tenant, may,
but shall not be obligated to, pay all or any part of the same. If the Tenant is in default
in the performance of any of its covenants or obligations hereunder (other than the payment
of Rent or other sums required to be paid pursuant to this Lease) the Landlord may from
time to time after giving such notice as it considers sufficient (or no notice in the case
of an emergency) having regard to the circumstances applicable, perform or cause to be
performed any of such covenants or obligations, or any part thereof, and for such purpose
may do such things as may be required, including, without limitation, entering upon the
Leased Premises and doing such things upon or in respect of the Leased Premises or any part
thereof as the Landlord reasonably considers requisite or necessary. All expenses incurred
and expenditures made pursuant to this Section 15.06 plus a sum equal to fifteen (15%)
percent thereof representing the Landlord's overhead shall be paid by the Tenant as Rent,
or otherwise as maybe the case, forthwith upon demand. The Landlord shall have no liability
to the Tenant for any loss or damages resulting from any such action or entry by the
Landlord upon the Leased Premises under Articles XIII of XV and same is not a re-entry or a
breach of any covenant for quiet enjoyment contained in this Lease.
15.07 Lien on Trade Fixtures
If
the Tenant at any time during the term or at the expiration or other termination of the
term is in default under any covenant or obligation contained in this Lease, the Landlord
has a lien on all stock-in-trade, inventory, fixtures, equipment and facilities of the
Tenant as security against loss or damage resulting from any such default by the Tenant and
said stock-in trade, inventory, fixtures, equipment or facilities shall not be removed by
the Tenant until such default is cured, unless otherwise permitted in writing by the
Landlord.
15.08 Charges Collectable as Rent
If the Tenant is in default in the payment of any amounts or charges required to be paid pursuant to this Lease, they shall, if not paid when due, be collectable as rent with the next monthly installment of gross rent thereafter falling due hereunder, but nothing herein contained is deemed to suspend or delay the payment of any amount of money or charges at the time same becomes due and payable hereunder, or limit any other remedy of the Landlord. The Tenant agrees that the Landlord may, at its option, apply or allocate any sums received from or due to the Tenant against any amounts due and payable hereunder in such manner as the Landlord sees fit.
ARTICLE XV1
MISCELLANEOUS
16.01 Rules and Regulations
The
Rules and Regulations applicable to the Tenant are attached at Schedule “D”,
and are hereby made a part of this Lease as if they were embodied herein, and the Tenant
shall comply with and observe the same.
The Tenant's failure to keep
and observe the rules and regulations constitutes a default under this Lease in such manner
as if the same were contained herein as covenants. The Landlord reserves the right from
time to time to amend or supplement the Rules and Regulations applicable to the Leased
Premises or Building with respect to the same or similar items outlined at Schedule
“D”. Notice of the Rules and Regulations and amendments and supplements, if
any, shall be given to the Tenant and the Tenant shall thereupon comply with and observe
all such rules and regulations provided that no Rules and Regulations shall contradict any
terms, covenants and conditions of this Lease.
16.02 Overholding - No Tacit Renewal
If
the Tenant remains in possession of the Leased Premises after the end of the term with the
consent of the Landlord but without having executed and delivered a new lease, there is no
tacit renewal of this Lease and the term hereby granted, notwithstanding any statutory
provisions or legal presumption to the contrary, and the Tenant shall be deemed to be
occupying the Leased Premises as a from month to month at a monthly Minimum Rent payable in
advance on the first day of each month equal to One hundred and fifty percent (150%) of
Minimum Rent paid during the last year of the Term.
16.03 Successors
All
rights and liabilities herein granted to, or imposed upon the respective parties hereto,
extend to and bind the successors and assigns of the Landlord and the heirs, executors,
administrators and permitted successors and assigns of the Tenant, as the case may be. No
rights, however, shall enure to the benefit of any assignee of the Tenant, unless the
assignment to such assignee has been approved by the Landlord in writing as provided in
Section 12.01 hereof. If there is more than one, they are all bound jointly and severally
by the terms, covenants and conditions herein.
16.04 Partnership
If
the Tenant is a partnership (the "Tenant Partnership") each Person who is presently a
member of the partnership, and each Person who becomes a member of any successor Tenant
Partnership hereafter, shall be and continue to be liable jointly and severally for the
full and complete performance of, and shall be and continue to be subject to this Lease,
whether or not such Person ceases to be a member of such Tenant Partnership or successor
Tenant Partnership.
16.05 Waiver
The waiver by the Landlord of any breach of any term, covenant or condition herein contained is not deemed to be a waiver of such term, covenant or condition or of any subsequent breach of the same or of any other term, covenant or condition herein contained. The subsequent acceptance of rent hereunder by the Landlord is not deemed to be a waiver of any preceding breach by the Tenant of any terms, covenant or condition of this Lease, regardless of the Landlord's knowledge of such preceding breach at the time of acceptance of such rent. No term, covenant or condition of this Lease is deemed to have been waived by the Landlord unless such waiver is in writing by the Landlord.
All Rent to be paid by the
Tenant to the Landlord hereunder shall be paid without any deduction, abatement, set-off or
compensation whatsoever and the Tenant hereby waives the benefit of any statutory or other
rights in respect of deduction abatement, set-off or compensation in its favor at the time
hereof or at any future time.
16.06 Accord and Satisfaction
No
payment by the Tenant or receipt by the Landlord of a lesser amount than the monthly
payment of Gross Rent herein stipulated is deemed to be other than on account of the
earliest stipulated Gross Rent, nor is any endorsement or statement on any cheque or any
letter accompanying any cheque or payment as Rent deemed an acknowledgement of full payment
or an accord and satisfaction, and the Landlord may accept and cash such cheque or payment
without prejudice to the Landlord's right to recover the balance of such Rent or other
remedy provided in this Lease.
16.07 No Partnership or Agency
The
Landlord does not in any way or for any purpose become a partner of the Tenant in the
conduct of its business, or otherwise, or a joint venturer or a member of a joint
enterprise with the Tenant, nor is the relationship of principal and agent created.
16.08 Force Majeure
Notwithstanding
anything to the contrary contained in this Lease, if the Landlord or Tenant is bona fide
delayed or hindered in or prevented from the performance of any term, covenant or act
required hereunder by reason of any strike, labour trouble; inability to procure materials
or services; power failure; restrictive governmental law or regulation; riot; insurrection;
sabotage; rebellion; war; act of God; or other reason whether of a like nature or not which
is not the fault of the said Party, then performance of such terms, covenant or act is
excused for the period of the delay and the Party shall be entitled to perform such term,
covenant or act within the appropriate time period after the expiration of the period of
such delay. Notwithstanding the above, this Section does not apply to the Tenant's payment
of Rent.
16.09 Notices
Any
notice, demand, request or other instrument which may be or is required to be given under
this Lease shall be delivered in person or sent by registered mail postage prepaid and
shall be addressed (a) if to the Landlord, to the Landlord at 0000 Xxxxx Xxxxxxxx Xxx,
Xxxxxxxx, Xxxxxxx, X0X 0X0, or to such other Person or at such other address as the
Landlord designates by written notice, and (b) if to the Tenant, at the Leased Premises.
Any such notice, demand, request or consent is conclusively deemed to have been given or
made on the day upon which such notice demand, request or consent is delivered, or, if
mailed, then on the second business day following the date of mailing, as the case may be,
provided that in the event of interruption of mail deliveries by reason of strike or
otherwise, the second business day following resumption of mail delivery. Either party may
at any time give notice in writing to the other of any change of address of the party
giving such notice and from and after the giving of such notice, the address therein
specified is deemed to be the address of such party for the giving of notices
hereunder.
16.10 Registration
(a) Neither the Tenant nor anyone on the Tenant's behalf or claiming under the Tenant shall register this Lease or any permitted sublease of this Lease or any document evidencing any interest of the Tenant in the Lease or the Leased Premises, against the lands or any part thereof comprising the Building or the Leased Premises, against the lands or any part thereof comprising the building or the Leased Premises. If either party intends to register a document for the purpose only of giving notice of this Lease or of any permitted assignment or permitted sublease of this Lease, then, upon request of such party, both parties shall join in the execution of a short form of this Lease or of any permitted assignment or permitted sublease of this Lease, then, upon request of such party, both parties shall join in the execution of a short form of this Lease ("Short Form") solely for the purpose of supporting an application for registration of notice or this Lease or of any permitted assignment or permitted sublease. The form of the short form and of the application to register notice of this Lease or of any permitted assignment or permitted sublease shall (i) be prepared by the Landlord or its solicitors at the Tenant's expense;) (ii) include therein a provision for, and require consent to, such registration by or on behalf of the Landlord; and (iii) only describe the parties, the Leased Premises and the Commencement Date and expiration date of the Term.
(b) All costs, expenses and
taxes necessary to register notice of this Lease or of any permitted assignment or
permitted sublease shall be the sole responsibility of the Tenant and the Tenant will
complete any necessary affidavits required for registration purposes, including affidavits
necessary to register the power of attorney contained in the short form. If requested by
the Landlord, the Tenant shall execute promptly a power of attorney at any time and from
time to time as may be required to give effect to this Section 16.10(b).
16.11 Compliance with The Planning Act
It
is an expressed condition of the within Lease and the Landlord and the Tenant so agree and
declare that the Provisions of Section 49 of the Planning Act, 1983 (Ontario), and
amendments thereto, be complied with if applicable in law. Until any necessary consent to
the Lease is obtained, the term (including any extensions thereof) and the Tenant's rights
and entitlement granted by this Lease are deemed to extend for a period only of twenty-one
(21) years less one (1) day from the Commencement Date. The Tenant shall apply diligently
to prosecute such application for such consent forthwith upon the execution of the Lease by
the Landlord and the Tenant shall be responsible for all costs, expenses, taxes and levies
imposed, charged or levied as a result of such application and in order to obtain such
consent. The Tenant shall keep the Landlord informed, from time to time, of its progress in
obtaining such consent and the Landlord shall co-operate with the Tenant in regard to such
application. Notwithstanding the foregoing provisions of this Section 16.11 the Landlord
reserves the right at any time to apply for such consent in lieu of the Tenant (at the
Tenant's expense) and the Tenant's application is hereby expressly made subject to any
application which the Landlord intends to make.
16.12 Quiet Enjoyment
If
the Tenant pays the Rent and other sums herein provided, and observes and performs all the
terms, covenants and conditions on the Tenant's part to be observed and performed, the
Tenant shall peaceably and quietly hold and enjoy the Leased Premises for the Term hereby
demised without hinderance or interruption by the Landlord, or another Person lawfully
claiming by, through or under the Landlord subject, nevertheless, to the terms, covenants
and conditions of this Lease.
16.13 Option to Renew
If
the Tenant is not in default under the terms, covenants and provisions contained in this
Lease Tenants at the date of the giving of the Tenant's notice hereinafter referred to and,
if the Tenant has not been habitually in default in the performance of the covenants,
provisos and agreements herein contained and on the part of the Tenant to be performed,
then, the Tenant shall have the option of renewing this Lease for a further term of
THREE (3) YEARS
upon the expiration of the herein term
provided that the Tenant shall have the option, at least six (6) months prior to the
expiration of the initial term but such written notice may not and shall not be given
earlier than nine (9) months prior to the expiration of the initial term. In the event that
the Tenant shall exercise the option as aforesaid, then the Lease for such additional
consecutive term shall be upon the same terms and conditions as contained in this Lease,
save and except that:
(a) There
shall be no additional option to renew; and
(b) The
annual Minimum Rent for such additional consecutive term shall be as mutually agreed upon
in writing by the Tenant and the Landlord prior to the expiration of the initial term. The
annual Minimum Rent payable in such additional consecutive term shall be based upon the
prevailing market rate for similar space located in a building of the same quality as the
Building in the municipality in which the Building is located, in effect as at the
expiration date of the then expiring period of this Lease. In the event that the Tenant and
the Landlord cannot mutually agree upon the annual Gross Rent for such additional
consecutive terms, then the disagreement shall be referred to arbitration.
The provision of this
paragraph shall be deemed to be a submission to arbitration within the provisions of The
Arbitration Act, and any statutory modification or re-enactment thereof. If the original
term or any renewal period has expired and, the Landlord and Tenant are proceeding to
arbitrate the Minimum Rent for the subsequent renewal period then, until such arbitration
becomes final and binding, the annual Minimum Rent paid by the Tenant shall be as
determined by the Landlord acting reasonably using the prevailing market rate for similar
space in the area located in a building of the same quality as the Building and, adjusted
upon receipt of the Arbitrator's decision.
IN WITNESS
WHEREOF, the Landlord, the
Tenant and the Indemnifier have signed and sealed this Lease as of the day and year first
above written.
SIGNED, SEALED
AND )
DELIVERED in the
)
presence
of:
) ______________________
XXXXX
X XXXXXX
SIGNED, SEALED AND )
DELIVERED in the
)
presence
of:
) ________________________
XXXX X XXXXXX
SIGNED, SEALED AND )
DELIVERED in the
)
presence
of:
) per:_______________________c/s
SIGNED, SEALED AND )
DELIVERED in the
)
presence
of:
) per:________________________c/s
SCHEDULE "A"
LEGAL DESCRIPTION OF BUILDING
Part of Parcel Block 1-3, Section 20M-367 being Part of Block 1, Plan 20M-367 designated as parts 8 and 11 Plan 20R-8626, Town of Oakville, Regional Municipality of Halton. Land Titles Division of Halton (No. 20).
SCHEDULE "B"
PLAN SHOWING LEASED PREMISES
SCHEDULE "C"
LANDLORD'S WORK AND TENANT'S
WORK
|
1) |
Paint Premises to Tenant’s choice of colour from Landlord’s building standard samples |
|
2) |
Carpet to Tenant’s choice of colour from Landlord’s building standard samples |
|
3) |
Install new entrance door in wood and glass French door style – no sidelight required |
|
4) |
Replace any broken or discoloured ceiling tiles and light lenses |
|
5) |
Finish drywall and other door/frame in premises |
|
6) |
Landlord, at its expense shall provide building standard directory board and suite signage for the Tenant |
SCHEDULE "D"
RULES
AND REGULATIONS FORMING PART OF THE WITHIN LEASE
1. The
sidewalk, entry, passages, elevators, fire escapes and common stairways shall not be
obstructed by any of the Tenants or used by them for any other purpose other than for
ingress and egress to and from their respective demised premises. Tenants will not place or
allow to be placed in the building corridors or public stairways any waste paper, dust,
garbage, refuse or anything whatever that would tend to make them unclean or untidy.
2. The skylights and windows that reflect or admit light into
passageways and common areas of the Building shall not be covered or obstructed by any of
the Tenants, and no awnings shall be put up, without the written consent of the
Landlord.
3. The water-closets and other water apparatus shall not be
used for any purpose other than those for which they were constructed, and no sweepings,
rubbish, rags, ashes or other substances shall be thrown therein. Any damage resulting from
misuse shall be borne by the Tenant by whom, or by whose agent, servant or employee, the
same is caused. Tenants shall not let the water run unless in actual use nor shall they
deface any part of the Building.
4. No Tenant shall do or permit anything to be done in the
Building or bring or keep anything therein which will in any way increase the risk of fire,
or obstruct or interfere with the rights of other Tenants, or violate, or act at variance
with, the laws relating to fires or with the regulation of the Fire Department or the Board
of Health.
5. Tenant's, their agents, employees or servants or persons
having business with them, shall not make or commit any improper noises in the Building,
lounge about doors or corridors, or interfere in any way with other Tenants or those having
business with them.
6. Nothing shall be thrown by the Tenants, their agents,
employees or servants, out of windows or doors or down the passages or skylights of the
Building.
7. No birds or animals shall be kept in or about the Building
nor shall the Tenants operate or permit to be operated any musical or sound producing
instrument or devise inside or outside the Leased Premises which may be heard outside the
Leased Premises.
8. No one shall use the Leased Premises for sleeping
apartments or residential purposes, or for the storage of personal effects or articles
other than those required for business purposes.
9. The Landlord shall have the right:
(a) to
require all persons entering or leaving the Building during such hours as the Landlord may
reasonably determine to identify themselves to a watchman by registration or otherwise to
establish their right to enter or leave; and
(b) to exclude or expel any
peddlar or beggar at any time from the Leased Premises or the Building.
10. Tenant's must observe strict care not to allow their
windows to remain open so as to admit rain or snow, or so as to interfere with the heating
of the Building. Any injury or damage caused to the Building or its appointments,
furnishings, heating and other appliances, or to any other Tenant or to the premises
occupied by any other Tenant by reason of windows being left open, by interference with or
neglect of the heating appliance, or by reason of any other misconduct or neglect upon the
part of the Tenant or any other person or servant subject to him shall be made good by the
Tenant in whose premises the neglect, interference or misconduct occurred.
11. It shall be the duty of the respective Tenants to assist
and co-operate with the Landlord in preventing injury to the Building and those in or on
the premises demised to them respectively.
12. No inflammable oils or other inflammable, dangerous or
explosive materials shall be kept or permitted to be kept in said premises. Nothing shall
be placed on the outside of the window xxxxx.
13. Furniture, effects and supplies shall not be taken into
or removed from the leased Premises, except at such time and in such manner as may be
previously approved by the Landlord.
14. No bicycles or other vehicles shall be brought within the
said Building.
15. Business machines, filing cabinets, heavy merchandise or
other articles liable to overload, injure or destroy any part of the Building shall not be
taken into it without the written consent of the Landlord and the Landlord shall, in all
cases, retain the right to prescribe the weight and proper position of all such articles
and the times and routes for moving them into or out of the Building; the cost of repairing
any damage done to the Building by such manner as may be previously approved by the
Landlord.
16. The Tenant shall not place any additional lock upon any
door of the Building without the written consent of the landlord.
17. The Tenant shall give the Landlord prompt notice of any
accident to or any defect in the plumbing, heating, air conditioning, mechanical or
electrical apparatus or any other part of the Building.
18. The Tenant shall not install or permit the installation
or use of any machine dispensing goods for sale in the Leased Premises or the Building
19. The parking of cars on the surface grade shall be subject
to the reasonable regulation of the Landlord.
20. The lining of all window drapes facing the interior
surface of exterior windows shall be subject to the prior approval of the landlord as to
colour and material, and the Tenant shall not hang and will remove any draperies which in
the Landlord's opinion do not conform to any uniform scheme of window coverings established
for the Building.
21. The Landlord shall have the right to make such other and
further reasonable rules and regulations as in its judgment may from time to time be
needful for the safety, care, cleanliness and appearance of the Leased Premises and the
Building, and for the preservation of good order therein, and the same shall be kept and
observed by the Tenants, their agents, employees and servants.
22. The Tenant agrees to the foregoing RULES AND REGULATIONS,
which are hereby made a part of this lease, and each of them, and agrees that for such
persistent infraction of them, or any of them, as may in the opinion of the Landlord be
calculated to annoy or disturb the quiet enjoyment of any other Tenant, or for gross
misconduct upon the part of the Tenant, or anyone under him, the Landlord may declare a
forfeiture and cancellation of the accompanying Lease and may demand possession of the
Leased Premises upon one week's notice.
300651.1
