DATED: APRIL 3RD, 1980
----------------------
BRAMALEA LIMITED
-and-
DUCON-MIKROPUL
--------------
---------------------------------
LEASE
---------------------------------
Address: 0000 Xxxxxxx Xxxxxx, Xxxxxxxx
XXXXX, XXXXX
Xxxxx 000
0000 Xxxxx Xxxxxx
XXXXXXX, Xxxxxxx
X0X 0X0 (SI: 11238)
SCHEDULE A
PLAN OF SURVEY OF
BLOCK G REGISTERED PLAN XX. 000
XXXXXXXX XX XXXXXXXXXXXX
XXXXXX XX XXXX
XXXXX: 1 INCH = 100 FEET
THIS INDENTURE made as of the 3rd day of April l980
IN PURSUANCE OF THE SHORT FORMS OF LEASES ACT
B E T W E E N:
BRAMALEA LIMITED, a Corporation incorporated
under the laws of the Province of Ontario,
(hereinafter called the "Landlord")
OF THE FIRST PART:
- and -
DUCON-MIKROPUL LIMITED, a Corporation
incorporated under the laws of Canada
(hereinafter called the "Tenant")
OF THE SECOND PART:
W H E R E A S:
A. The Landlord and Tenant are parties to a certain indenture of
lease dated January l5th,1974, amended by agreement dated December
lst,1975 and by letter dated October 23rd,1978 ( the "(Original
Lease");
B. The Original Lease terminates on April 3Oth,1980, and the
Landlord and Tenant desire to enter into this lease to provide for a
continuation of tenure;
W I T N E S S E T H:
DEMISE 1.00 That in consideration of the rents, covenants and agreements
hereinafter reserved and contained on the part of the Tenant to be
paid, observed and performed, the Landlord doth demise and lease unto
the Tenant all and singular that certain parcel or tract of land and
premises situate, lying and being in the City of Brampton and Province
of Ontario, and being municipally known as 0000 Xxxxxxx Xxxxxx, all of
which said property is sometimes hereinafter referred to as the
"demised premises," "leased premises" or "premises," and being Part
of Block G, Registered Plan 720, as shown outlined in blue on Schedule
"A" annexed hereto, and having thereon a building containing 18,496
square feet.
TERM 2.00 TO HAVE AND TO HOLD the demised premises, unless such term
shall be sooner terminated as hereinafter provided, for and during the
term of six (6) years to be computed from and inclusive of the 1st day
of May,1980, and from thenceforth next ensuing and ended on the 30th
day of April, 1986.
USE OF 3.00 The Tenant shall use and occupy the demised premises for
PREMISES offices, warehousing and other uses required by the Tenant in
connection with its business; provided the Tenant, in the use and
-2-
occupation of the demised premises and in the prosecution or conduct of
any business therein, shall comply with all requirements of all laws,
orders, ordinances, rules and regulations of the Federal, Provincial,
Regional and/or Municipal authorities, and with any direction or
certificate of occupancy issued pursuant to any law by a public officer
or officers. The Tenant covenants that it will not use or permit to be
used any part of the demised premises for any dangerous, noxious or
offensive trade or business and it will not cause or maintain any
nuisance in, at or on the demised premises, and the Tenant covenants to
carry on active business in the demised premises for the term hereby
granted.
RENT 4.00 YIELDING AND PAYING THEREFOR yearly and every year without any
abatement or deduction for any reason whatsoever, during the term hereby
granted, the sum of FIFTY-FIVE THOUSAND FOUR HUNDRED EIGHTY-EIGHT
DOLLARS ($55,488.00) of lawful money of Canada to be paid in advance in
equal consecutive monthly installments of $4,624.00 each on the 1st day
of each and every month in each year during the term hereby demised,
commencing on the 1st day of May , 1980, together with additional rent
hereinafter reserved.
DEPOSIT
PAYMENT 6.00 All payments required to be made by the Tenant under and in
respect to this lease shall be made to the Landlord, at the Landlord's
office, 0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx, X0X0X0, or to
such agent o agents of the Landlord or at such other place as the
Landlord shall hereafter from time to time direct in writing to the
Tenant.
-3-
TENANT'S 7.00 The Tenant covenants with the Landlord:
COVENANTS
7.01 To pay rent.
ADDIT- 7.02 The Tenant shall as additional rent in each and every year
IONAL during the term, pay and discharge all taxes (including local
RENT improvement rates), rates, duties and assessments that may be levied,
rated, charged or assessed against the demised premises or any part
thereof, and without limiting the generality of the foregoing, every
other tax, charge, rate, assessment or payment which may become a
charge or encumbrance upon or levied or collected upon or in respect of
the demised premises or any part thereof, whether charged by any
Municipal, Parliamentary or other body during the term hereby demised.
7.03 The Tenant shall pay, as the same becomes due respectively,
all charges for public and private utilities, including without
limitation, water, gas, electrical power or energy, steam or hot water
used upon or in respect of the demised premises and for fittings,
machines, apparatus, meters or other things leased in respect thereof,
and for all work or services performed by any corporation or commission
in connection with such public or private utilities.
7.04 The Tenant shall have the right to contest by appropriate
legal proceedings, the validity of any tax, rate, including local
improvement rates, assessments or other charges referred to in this
section.
INTERIOR 7.05 The Tenant, at its sole cost and expense, shall maintain and
MAINTEN- keep the demised premises and every part thereof in good order and
ANCE condition and promptly make all needed repairs and replacements
(reasonable wear and tear and damage by perils insured against only
excepted) and without limiting the generality of the foregoing, the
Tenant shall keep the demised premises well painted, clean and in such
condition as a careful owner would do.
EXTERIOR 7.06 The Tenant, at its sole cost and expense, shall maintain and
keep the sidewalks, parking areas, driveways and landscaping generally
in good order and condition and promptly make all needed
-4-
repairs and replacements (reasonable wear and tear and damage by perils
insured against only excepted) and without limiting the generality of
the foregoing, the Tenant shall keep the sidewalks, parking areas and
driveways in a clean and orderly condition free of accumulation of
dirt, rubbish, snow and ice. The Tenant shall also keep and maintain
all lawns and landscaping in such condition as a careful owner would do
including the replacement of lawn and landscaping where the Tenant has
failed to care for such lawn and landscaping as a careful owner would
do.
7.07 In the event that the Tenant requires outside storage
facilities, the Tenant shall construct a fence in compliance with all
Municipal by-laws, and in the event that such by-laws do not exist,
then in accordance with the specifications of the Landlord. The Tenant,
at its sole cost and expense shall maintain and keep all outside
storage areas in good order and condition and promptly make all needed
repairs and replacements (reasonable wear and tear, and damage by
perils insured against only excepted).
ENTRY 7.08 It shall be lawful for the Landlord and/or its agents, at all
BY reasonable times during the term and following at least twenty-four
LAND- (24) hours notice, to enter the demised premises to inspect the
LORD condition thereof. Where an inspection reveals repairs are necessary,
in the reasonable opinion of the Landlord, the Landlord shall give the
Tenant notice in writing, and thereupon the Tenant shall within thirty
(30) days of the date of delivery of the notice, make the necessary
repairs in a good and workmanlike manner.
LEAVE 7.09 And the Tenant shall, at the expiration or sooner
PREMISES determination of the term, peaceably surrender and yield up unto the
IN GOOD Landlord the demised premises, together with the appurtenances, and all
REPAIR buildings or erections which at any time during the term shall have
been made therein or thereon, in good and substantial repair and
condition (reasonable wear and tear and damage by perils insured
against only excepted).
-5-
HEATING 7.10 To heat the demised premises in a reasonable manner at its own
expense from heating equipment supplied by the Landlord, and to
maintain, keep in good repair, and replace,* if necessary, at its own
expense, the heating equipment and controls used in connection
therewith, subject to the condition of the said heating equipment as of
the date of the commencement of the within term, and to provide all the
necessary fuel and other supplies for the operation of the heating
plant; and to heat the demised premises as aforementioned so as, at all
times, to protect the demised premises and all of its contents from
damage by cold or frost.
AIR- 7.11 To air-condition the office area located in the demised
XXXXXX- premises from air-conditioning equipment supplied by the Landlord and
IONING to maintain, keep in good repair, and replace,* if necessary at its own
expense, the air-conditioning equipment and controls used in connection
therewith, subject to the condition of the said air-conditioning
equipment as of the date of the commencement of the within term.
PUBLIC 7.12 The Tenant, at its own expense, shall observe and promptly
ORDERS comply with all statutes, orders-in-council, by-laws, rules,
regulations and requirements of all Federal, Provincial, Regional and
Municipal Governments and appropriate Departments thereof, and the
orders, rules and regulations of the Insurance Advisory Organization or
any other body hereafter constituted exercising similar functions which
may be applicable to the leased premises and or the use or manner of
use of the leased premises. The Tenant shall likewise observe and
comply with the requirements of all policies of insurance at any time
in force under the provisions of this lease. The Landlord acknowledges
that the demised premises, at the commencement of the term of the
lease, comply with all Municipal by-laws.
ASSIGN- 7.13 The Tenant shall not assign nor sublet or permit the premises
MEMT to be occupied by anyone other than the Tenant, without the written
AND SUB- consent of the Landlord, provided such consent shall not be
LETTING unreasonably withheld.
*if it is determined by an independent mechanical engineer that the
existing roof mounted combination heating-cooling unit requires
replacement, the Landlord shall make such replacement and the Tenant
shall pay the cost thereof up to a maximum of $25,000.00 and the
Landlord shall pay the excess.
-6-
NUISANCE 7.14 The Tenant shall not do, nor omit nor permit to be done or
omitted upon or about the demised premises, anything which shall be or
shall result in a nuisance or menace to the Landlord, or the owners or
occupiers of neighbouring premises.
INSUR- 7.15 The Tenant, in the names of the Tenant, the Landlord and
ANCE every mortgagee of the demised premises from time to time and with some
insurance company or companies satisfactory to the Landlord and every
such mortgagee, shall take out and maintain with respect to the demised
premises and the Tenant's use and occupation thereof and furnish to the
Landlord policies of:
(a) public liability and property damage insurance,
including personal injury, in respect of the demised
premises and its operation therein up to such limits as
the Landlord may from time to time reasonably request
but to the extent of not less than ONE MILLION DOLLARS
($1,000,000.00) inclusive of all injuries or death to
persons and damage to property of others arising from
any one occurrence;
(b) plate glass insurance in an amount sufficient to
replace all plate glass in the demised premises and in
the exterior doors and windows thereof;
(c) insurance against loss by such insurable hazards as the
Landlord may from time to time reasonably request on a
replacement cost basis in an amount sufficient to cover
the cost of replacement of all alterations,
decorations, fixtures, additions, improvements, and
trade inventory made, installed, brought, maintained
or stored by the Tenant on the demised premises;
(d) business interruption insurance for such amount as the
Landlord may from time to time reasonably request.
7.16 The Tenant shall pay forthwith on demand all premiums with
respect to the following insurance policies which the Landlord
-7-
shall take out and maintain, or cause to be taken out and maintained:
(a) insurance against destruction or damage by fire and
those additional perils contained in the extended
perils endorsement of such insurance company or
companies usual from time to time for similar risks to
the extent of the full replacement value of footings,
foundations and pavements;
(b) if any boiler or pressure vessels are on the demised
premises, boiler and pressure vessels insurance up to a
limit of not less than FIVE HUNDRED THOUSAND DOLLARS
($500,000.00);
(c) loss of rental income insurance for such amount as the
Landlord may from time to time reasonably request.
7.17 The proceeds of all insurance on the demised premises against
property damage shall be paid to the Landlord and/or to any
mortgagee(s) as aforesaid upon the occurrence of any loss. In case of
damage to, or total or partial destruction of the demised premises or
any part thereof, by force or otherwise; the Tenant shall give the
Landlord prompt notice thereof, and the Landlord, subject to Paragraph
8.00 herein, shall proceed to restore the property so damaged to the
same condition as prevailed immediately prior to the occurrence of such
damage.
7.18 All insurance policies required under this Article shall
provide for waiver of subrogation, if available, in favour of the
Landlord and the Tenant respectively and all other companies
respectively owned, operated or controlled by or affiliated to any of
them, and each party may from time to time require the other to supply
evidence in respect thereto provided that if such endorsement can only
be obtained by payment of an additional premium, the other party, if it
insists upon such endorsement, shall pay such additional premium; and
in the event that waiver of subrogation is not available in favour of
the Landlord, then the Tenant shall obtain Tenant's legal liability
insurance in an amount reasonably satisfactory to the Landlord.
-8-
7.19 From time to time, at the request of the Landlord, the Tenant
shall also maintain such other or additional insurance and in such
amounts as at the time customarily is carried in respect of buildings
and building equipment then on the leased premises and shall also
maintain such other or additional insurance and in such amounts as may
be required by the holder of any mortgage of the premises, pursuant to
the terms of the particular mortgage.
7.20 The Tenant shall comply with all regulations of the Insurance
Advisory Organization or of any liability or fire insurance company by
which the Landlord or Tenant may be insured, which are necessary to
maintain such insurance. Such insurance shall, as from the respective
dates upon which the several existing policies of insurance
respectively expire, be effected with such insurance company or
companies as the Landlord may approve; provided such approval shall not
be unreasonably withheld and the policies of insurance shall be
produced to the Landlord. In the event that the Tenant shall fail to
insure and keep insured as herein provided, the Landlord shall be at
liberty to effect insurance as aforesaid and the cost of such insurance
shall be added to the rent hereby reserved and the amount thereof shall
be payable with the next ensuing installment of rent, and the Landlord,
in the event of nonpayment, shall be entitled to all remedies for the
recovery of same as for rent in arrears; and the Tenant shall have the
public liability insurance in the names of the Landlord and Tenant as
the persons assured.
7.21 Receipts or satisfactory evidence establishing the payment of
premiums in respect of each of the said policies shall be delivered to
the Landlord at least ten days before the same becomes due.
7.22 Subject to the provisions of Paragraph 8.00 below, in the
event of destruction of the demised premises or any part thereof by any
reason whatsoever insured against by the Landlord as hereinbefore
referred to, the Landlord shall cause the demised premises or any part
thereof to be reinsured as hereinbefore provided immediately upon
reconstruction or restoration.
-9-
DAMAGE 8.00 If and whenever during the term hereby demised the building
AND DES- erected on the demised premises shall be destroyed or damaged by
TRUCTION perils insured against as hereinbefore stated, then and in every such
event:
(a) If the damage or destruction is such that the building
erected on the demised premises is rendered wholly
unfit for occupancy or it is impossible or unsafe to
use or occupy, and if in either event the damage, in
the opinion of the Landlord to be given to the Tenant
within ten (10) days of the happening of such damage or
destruction, cannot be repaired with reasonable
diligence within one hundred and twenty (120) days from
the happening of such damage or destruction, then
either the Landlord or the Tenant may, within five (5)
days next succeeding the giving of the Landlord's
opinion as aforesaid, terminate this lease by giving to
the other notice in writing of such termination, in
which event this lease and the term hereby demised
shall cease and be at an end as of the date of such
destruction or damage and the rent and all other
payments for which Tenant is liable under the terms of
this lease shall be apportioned and paid in full to the
date of such destruction or damage. In the event that
neither Landlord nor Tenant shall terminate this lease,
then the Landlord shall repair the building with all
reasonable speed and the rent hereby reserved shall
xxxxx from the date of the happening of the damage
until the damage shall be made good to the extent of
enabling Tenant to use and re-occupy the demised
premises in the opinion of an architect designated by
the Landlord.
(b) If the damage or destruction is such that the building
erected on the demised premises is rendered wholly
unfit for occupancy or it is impossible or unsafe to
use or occupy, and if in either event the damage, in
the opinion of the Landlord to be given to the Tenant
within ten (10) days from the happening of such damage,
can be repaired with reasonable diligence within one
hundred and twenty (120)
-10-
days from the happening of such damage, then the rent
hereby reserved shall xxxxx from the date of the
happening of such damage until the damage shall be made
good to the extent of enabling the Tenant to use and
re-occupy the demised premises in the opinion of an
architect designated by the Landlord, and the Landlord
shall repair the damage with all reasonable speed.
(c) If in the opinion of the Landlord the damage or
destruction can be made good as aforesaid within one
hundred and twenty (120) days of the happening of such
damage or destruction, and the damage is such that a
portion of the building upon the demised premises is
capable of being partially used for the purposes for
which it is hereby demised, then until such damage has
been repaired, the rent shall xxxxx in the proportion
that the part of the portion of the building demised is
rendered unfit for occupancy bears to the whole of the
said building and the Landlord shall repair the damage
with all reasonable speed.
SEIZURE 9.00 PROVIDED AND IT IS HEREBY EXPRESSLY AGREED:
AND BANK-
RUPTCY
9.01 That in case, without the written consent of Landlord, the
demised premises shall become and remain vacant or not used for a
period of thirty (30) days while the same are suitable for use by the
Tenant, or be used by any other person than the Tenant, or in case the
term hereby granted or any of the goods and chattels of Tenant shall be
at any time seized or taken in execution or in attachment by any
creditor of Tenant or Tenant shall make any assignment for the benefit
of creditors or give any Xxxx of Sale without complying with The Bulk
Sales Act (Ontario) or become bankrupt or insolvent or take the benefit
of any Act now or hereafter in force for bankrupt or insolvent debtors
or any Order shall be made for the winding-up of Tenant, then in every
such case the then current month's rent and the next ensuing three (3)
months' rent shall immediately become due and payable, and, at the
option of the Landlord, this lease shall cease and determine and the
said term
-11-
shall immediately become forfeited and void, in which event the
Landlord may re-enter and take possession of the demised premises as
though the Tenant or any occupant or occupants of the demised premises
was or were holding over after the expiration of the term without any
right whatsoever.
NO EX- 9.02 That notwithstanding the benefit of any present or future
CEPTIONS Statute taking away or limiting the Landlord's right of distress, none
FOR of the goods and chattels of the Tenant on the demised premises at any
DISTRESS time during the said term shall be exempt from levy by distress for
rent in arrears.
9.03 That the Landlord shall not in any event whatsoever be liable
or responsible for any personal injury or death that may be suffered or
sustained by the Tenant or any employee of the Tenant or any other
person who may be upon the demised premises or for any loss or damage
or injury to any property belonging to the Tenant or to its employees
or to any other person while such property is on the demised premises
and, in particular, (but without limiting the generality of the
foregoing) Landlord shall not be liable for any damage to any such
property caused by steam, water, rain or snow which may leak into,
issue or flow from any part of the said building or adjoining premises
or from the water, steam, sprinkler or drainage pipes or plumbing works
of the same or from any other place or quarter or for any damage caused
by or attributable to the condition or arrangement of any electrical or
other wiring or from any damage caused by anything done or omitted to
be done by any Tenant.
INDEM- 9.04 The Tenant will indemnify and save harmless the Landlord
NIFICAT- from any and all liabilities, fines, suits, claims, demands, costs and
ION OF actions of any kind or nature whatsoever to which the Landlord shall or
LAND- may become liable for, or suffer by reason of any breach, violation or
LORD non-performance by the Tenant of any covenant, term or provision
hereof, or by reason of any injury, loss, damage or death resulting
from occasioned to or suffered by any person or persons, or any
property by reason of any act, neglect or default on the part of the
Tenant, or any of its agents, customers, employees,
-12-
servants, contractors, licensees or invitees, in or about the demised
premises or any part thereof; such indemnification in respect of any
such breach, violation, non-performance, damage to property, loss,
injury or death occurring during the term of this lease shall survive
any termination of this lease, anything in this lease to the contrary
notwithstanding.
HOLD- 9.05 That if the Tenant shall continue to occupy the demised
ING premises after the expiration of this lease, with or without the
OVER consent of the Landlord, and without any further written agreement, the
Tenant shall be a monthly Tenant at a monthly rental herein reserved
and otherwise on the terms and conditions herein set forth, except as
to length of tenancy.
OVER- 9.06 That the Tenant will not bring upon the demised premises or
LOAD- any part thereof or hang from the ceiling or walls any machinery,
ING equipment, article or thing that by reason of its weight, size or use
might damage the floor, roof or walls of the demised premises and that
if any damage is caused to the demised premises by any machinery,
equipment, article or thing or by overloading or by any act, neglect or
misuse on the part of the 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 pay to the Landlord the cost of
making good the same.
PAY- 9.07 That in the event of the Tenant failing to pay any taxes,
MENTS rates, insurance premiums or other charges, which it has herein
DEEMED covenanted to pay, or carry out any repairs, maintenance or
RENT replacements as it has herein covenanted to do, the Landlord may pay
or, as herein provided, perform the same, and shall be entitled to
charge the sums so paid or the cost of such performance to the Tenant
who shall pay them forthwith on demand; and Landlord, in addition to
any other rights, shall have the same remedies and make take the same
steps for the recovery of all such sums together with interest thereon
at prime plus four (4%) percent per annum, as it might have and take
for the recovery of rent in arrears under the terms of this lease; all
such payments required to be made under the terms of this lease shall
be deemed rent. In this lease "prime" shall mean the prime lending rate
by the Canadian Imperial Bank of Commerce, Main Branch Toronto,
adjusted on the first day of each month.
-13-
REFUSE 9.08 That the Tenant will keep the demised premises and every part
thereof in a clean and tidy condition and will not permit waste paper,
garbage, ashes or waste or objectionable material to accumulate
thereon.
LOADING 9.09 That all loading and unloading of merchandise, supplies
& UN- materials, garbage and other chattels shall be effected only through or
LOADING by means of such doorways or corridors as the Landlord shall designate.
DEMISED 9.10 Whenever in this lease reference is made to the demised
PREMISES premises, it shall include all structures, improvements and erections
DEFINED in or upon the demised premises or any part thereof from time to time.
EVID- 9.11 The Tenant shall from time to time at the request of the
ENCE OF Landlord produce to the Landlord satisfactory evidence of the due
PAY- payment by the Tenant of all payments required to be made by the Tenant
MENTS under this lease.
BY
TENANT
ADJUST- 9.12 The taxes and local improvement rates in respect of the first
MENT and last years of the terms hereby demised shall be adjusted between
OF TAXES the Landlord and the Tenant.
WAIVER 10.00 The Tenant hereby expressly waives in favour of the Landlord,
and of the holder or holders of any mortgages of the demised premises
during the whole of the term hereby granted, and any and all extensions
thereof or holding over, the benefit of and right granted by Section 35
of The Landlord and Tenant Act, R.S.O. 1970, Chapter 236, and
amendments thereto, and any other and all future Acts of any competent
legislative body having jurisdiction herein permitting or which may
permit the Tenant to claim or effect any setoff in whole or in part of
any debt due to the Tenant from the Landlord against the rental
reserved hereby, except as is herein provided.
FIX- 11.00 PROVIDED that the Tenant may remove trade fixtures; provided
TURES further that the Tenant shall not remove or carry away from
-14-
the said premises any building or any plumbing, heating or ventilating
plant or equipment or other building services.
RE- 12.00 PROVISO FOR RE-ENTRY by the said Landlord on non-payment of
ENTRY rent or non-performance of covenants.
The above powers may be exercised, whether legal demand for
the rent has been made or not. Provided that notwithstanding anything
hereinbefore contained, the Landlord's right of re-entry hereunder for
non-payment of rent, non-performance of covenants, seizure or
forfeiture of the said term shall become exercisable immediately upon
such default being made. Provided further, that upon such re-entry by
the Landlord under the terms of this paragraph, or any other provision
or provisions of this lease, the Landlord may in addition to any other
remedies to which the Landlord may be entitled, at its option, at any
time and from time to time re-let as agent for the Tenant the demised
premises or any part or parts thereof for the account of the Tenant or
otherwise and receive and collect the rents therefor, applying the same
first to the payment of such expenses as the Landlord may have incurred
in recovering possession of the demised premises including the legal
expenses and solicitor's fees and for putting the same into good order
or condition or preparing or altering the same for re-rental and all
other expenses, commissions and charges paid, assumed or incurred by
the Landlord in or about re-letting the premises and then to the
fulfillment of the covenants of the Tenant hereunder. Any such
re-letting herein provided for may be for the remainder of the term as
originally granted or for a longer or shorter period. In any such case
and whether or not the demised premises or any part thereof be re-let,
the Tenant shall pay to the Landlord the rental hereby reserved and all
other sums required to be paid by the Tenant up to the time of the
termination of this lease or of recovery of possession of the demised
premises by the Landlord, as the case may be, and thereafter the Tenant
covenants and agrees, if required by the Landlord, to pay to the
Landlord until the end of the term of this lease the equivalent of the
amount of all the rentals hereby reserved and all other sums required
to be paid by the Tenant hereunder, less
-15-
the net avails of re-letting, if any, and the same shall be due and
payable by the Tenant to the Landlord on the days herein provided for
rental, that is to say, upon each of the days herein provided for the
payment of rental, the Tenant shall pay to the Landlord the amount of
the deficiency then existing.
NET 13.00 The Tenant acknowledges and agrees that it is intended that
LEASE this lease shall be a completely carefree net lease for the Landlord,
that the Landlord shall not be responsible during the term of the lease
for any costs, charges, expenses and outlays of every nature whatsoever
in respect of the lands, buildings or improvements on the whole or part
of the demised premises, or the contents thereof, excepting only the
Landlord's income tax in respect of income received from leasing the
demised premises, corporation taxes, and principal and interest
payments to be made in connection with any mortgage or mortgages placed
on the lands and premises by the Landlord and except as may be herein
specifically noted.
QUIET 14.00 The Landlord covenants with the Tenant for quiet enjoyment.
ENJOY-
MENT
INSPEC- 15.00 The Landlord, or any other person producing a written order
TION OF signed by the Landlord or its agents, shall have the right to enter the
PREM- leased premises at all reasonable times in a manner so as not to
ISES unreasonably interfere with the operations of the Tenant or any of its
subtenants for the purposes of:
(a) making any repairs to the leased premises and
performing any work therein that may be necessary by
reason of the Tenant's default under the terms of this
lease continuing beyond the applicable periods of
grace; and
(b) exhibiting the leased premises for the purpose of sale
or mortgage; and
(c) exhibiting the leased premises (within one year prior
to the expiration of the term of this lease) to
prospective Tenants.
-16-
The Landlord shall have the right to erect a sign advertising
the premises for lease during the last six months of the term of the
lease.
REMOV- 16.00 PROVIDED that in case of removal by Tenant of the goods and
AL OF chattels of Tenant from off the premises, Landlord may follow the same
GOODS for thirty (30) days in the same manner as is provided for in the
Landlord and Tenant Act.
IMPROVE- 17.00 ANY BUILDING, erection or improvement placed or erected upon
MENTS the demised premises shall become a part thereof and shall not be
removed and shall be subject to all the provisions of this lease. No
building, erection or improvement shall be erected upon the demised
premises without the prior written consent of the Landlord.
ASSIGN- l8.00 LANDLORD DECLARES that it may assign its rights under this
MENT BY lease to any lending institution as security for a loan to Landlord and
LAND- in the event that such an assignment is given and executed by Landlord
LORD and notification thereof is given to Tenant by or on behalf of
Landlord, it is expressly agreed between Landlord and Tenant that this
lease shall not be cancelled or modified for any reason whatsoever
except as provided for, anticipated or permitted by the terms of this
lease or by law, without the consent of such Lending Institution.
TENANT COVENANTS AND AGREES WITH LANDLORD that it will, if and
whenever reasonably required by Landlord and at Landlord's expense,
consent to and become a party to any instrument relating to this lease
which may be required by or on behalf of any purchaser, bank or
mortgagee from time to time of the said premises; provided, always,
that the rights of the Tenant as hereinbefore set out be not altered or
varied by the terms of such instrument or documents.
LIMIT- 19.00 The term "Landlord" as used in this lease so far as covenants
ATION or obligations on the part of the Landlord are concerned, shall be
OF limited to mean and include only the owner or owners at the time in
LAND- question of the demised premises, and in the event of
LORD'S
LIABIL-
ITY
-17-
any transfer or transfers of ownership, the Landlord herein named, and
in case of any subsequent transfers or conveyances, the then vendor or
transferor, shall be automatically freed and relieved from and after
the date of such transfer or conveyance, of all personal liability as
respect the performance of any covenants or obligations on the part of
the Landlord contained in this lease thereafter to be performed,
provided that:
(a) Any funds in the hands of such Landlord or the then
vendor or transferor at the time of such transfer, in
which the Tenant has an interest, shall be turned over
to the purchaser or transferred and any amount then due
and payable to the Tenant by the Landlord or the then
vendor or transferor under any provisions of this
lease, shall be paid to the Tenant; and
(b) Upon any such transfer, the purchaser or transferee
shall be deemed to have assumed, subject to the
limitations of this paragraph, all of the terms,
covenants and conditions in this lease contained to be
performed on the part of the landlord; it being
intended hereby that the covenants and obligations
contained in this lease on the part of the Landlord
shall, subject as aforesaid, be binding on the
Landlord, its successors and assigns, only during and
in respect of their respective successive periods of
ownership.
SIGNS 20.00 The Tenant shall have the right to erect a sign, logo or
trademark (the "sign") on the exterior and interior of the walls
located on the demised premises; provided that the Tenant shall only
erect a sign in accordance with any local and/or regional building
codes, by-laws or regulations; and provided that the Tenant shall have
obtained the prior written consent of the Landlord.
20.01 The Tenant agrees that the Tenant shall not erect a sign or
any other identification on the roof of the leased premises.
-18-
The Tenant further agrees to submit to the Landlord detailed plans and
specifications of any proposed sign, prior to the Tenant acquiring such
sign.
LIENS 21.00 If any mechanics' or other liens or order for the payment of
money shall be filed against the leased premises by reason or arising
out of any labor or material furnished to the Tenant or to anyone
claiming through the Tenant, the Tenant shall, within fifteen (15) days
after notice to Tenant of the filing thereof, cause the same to be
discharged by bonding, deposit, payment, court order or otherwise. The
Tenant shall defend all suits to enforce such lien, or orders, whether
against Tenant or Landlord, at Tenant's sole expense. The Tenant hereby
indemnifies the Landlord against any expense or damage as a result of
such liens or orders.
WAIVERS 22.00 Any condoning, excusing or overlooking by the Landlord of any
CUMULAT- default, breach of non-observance by the Tenant at any time or times in
IVE respect of any covenant, proviso or condition herein contained or the
REMEDIES acceptance of any rent while any such default, breach or non-observance
ETC. exists shall not (any law, statutory or otherwise, to the contrary
notwithstanding) operate as a waiver of the Landlord's rights hereunder
in respect of any continuing or subsequent default, breach or
non-observance, nor so as to defeat or affect in any way the rights of
the Landlord hereunder in respect of any such continuing or subsequent
default, breach or non-observance and all rights and remedies herein
contained of the Landlord shall be deemed to be cumulative and not
alternative and the taking of any proceedings or step shall not
preclude the taking of any other proceeding or step.
INVALID- 23.00 If any term or provisions of this lease or the application
ITY OF thereof to any person or circumstances shall, to any extent, be invalid
PARTIC- or unenforceable, the remainder of this lease, or the application
ULAR of such term or provisions to persons or circumstances other than those
PROVIS- as to which it is held invalid or unenforceable, shall not be affected
IONS thereby and each term and provision of this lease shall be valid and
enforced to the fullest extent permitted by law.
-19-
LANDLORD 24.00 If Tenant shall default in the performance of any of the
MAY CURE terms, covenants and conditions of this lease, Landlord may,
TENANT'S after thirty (30) days notice to Tenant specifying such default, or
DEFAULT without notice if in the reasonable exercise of Landlord's judgment an
emergency exists, but shall not be obligated to perform the same for
the account and at the expense (including reasonable counsel fees) of
Tenant and the amount of any payments made or expenses incurred by
Landlord for such purpose, with interest thereon at prime plus four
(4%) percent per annum, shall become due and payable by Tenant as
additional rent with the next or any subsequent installment of rent
which shall become due after such expenditure by Landlord; but any such
expenditure by Landlord shall not be deemed to waive or release
Tenant's default or the right of Landlord to take such action as may be
permissible under the terms of this lease in the event of such default.
When no emergency exists, the provisions of this paragraph 24.00 shall
be inapplicable if, within thirty (30) days after such notice by
Landlord, Tenant shall have cured such default or shall have commenced
and is diligently proceeding to cure same.
NOTICES 25.00 The Tenant shall, without charge, at any time and from
AND time to time, within ten (10) days after request by Landlord,
CERTIFI- certify by written instrument, duly executed, acknowledged and
XXXXX delivered to Landlord or any other person, firm or corporation
specified by Landlord:
(a) that this lease is unmodified and in full force and
effect, or, if there have been any modifications, that
the same is in full force and effect as modified and
stating the modification;
(b) whether or not there are then existing any setoffs or
defenses against the enforcement of any of the
agreements, terms, covenants or conditions of this
lease upon the part of the Tenant to be performed or
complied with and, if so, specifying the same; and
-20-
(c) the dates, if any, to which the net rent, additional
rent and any other charges hereunder have been paid.
25.01 Any notice to be given by the provisions of this lease shall
be sufficiently given if served personally or if mailed, postage
prepaid, at any one of Her Majesty's Post Offices in the Province of
Ontario in a registered letter addressed:
(a) in the case of a notice to the Landlord, to it at 0000
Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx, X0X lY5,
attention President - Bramalea Limited with a copy to
Bramalea Limited, Industrial Division;
(b) in the case of a notice to the Tenant, to it at the
demised premises.
Any notice so mailed shall be held conclusively to have been
given 24 hours after such mailing.
Either party may from time to time by notice to the other
change the address to which notices are to be given, such change of
address to be effective only upon the written acknowledgment of the
other party of receipt thereof.
In the event of a publicized disruption of postal service, all
notices required hereunder shall be made by personal service.
SURREN- 26.00 The Tenant, upon termination of this lease shall peaceably and
DER OF quietly surrender the leased premises and any improvements thereon in
PREMISES good order, repair and condition.
MISCELL- 27.00 In addition to the specific obligations elsewhere in this
ANEIOUS lease reserved and contained on the part of the Tenant to be observed
and performed, and without in any limiting the generality thereof, the
condition, maintenance, operation and management of the demised
premises, the buildings, appurtenances thereto and other improvements
from time to time thereon and all machinery, equipment and other
facilities therein or thereon shall be the
-21-
sole responsibility of the Tenant throughout the term thereof and the
Tenant shall make all payments, foreseen, unforeseen, ordinary and/or
extraordinary, required to be made only with respect to the observance
and performance of specific obligations but also with respect to the
general obligation in this clause contained.
27.01 Any payment required to be made by any provision of this lease
shall be made in lawful money of Canada.
27.02 The Tenant acknowledges the leased premises are subject to all
local ordinances and building restrictions as the same may affect the
demised premises. Tenant accepts the Landlord's title to the demised
premises and further accepts the demised premises in their present
condition.
27.03 This lease contains the entire agreement between the parties
and shall not be modified in any manner except by an instrument in
writing executed by the parties.
27.04 The marginal notes contained in this lease are for convenience
and references only and in no way define, limit or describe the scope
or intent of this lease nor in any way affect this lease.
27.05 Words importing the singular number only shall include the
plural and vice-versa, and words importing the masculine gender shall
include the feminine gender and words importing persons shall include
firms and corporations and vice-versa.
27.06 This Indenture and everything herein contained shall extend to
and bind and enure to the benefit of the respective heirs, executors,
administrators, successors and assigns (as the case may be) of each and
every of the parties hereto, subject to the consent of the Landlord
being obtained, as hereinbefore provided, to any assignment or
sub-lease by Tenant. All rights and powers reserved to Landlord may be
exercised by either Landlord or its agents or representatives.
-22-
27.07 The Tenant shall not assign or sublet, nor agree to assign or
sublet, nor accept an offer to assign or sublet (other than to a
subsidiary or associated corporation within the meaning of The Income
Tax Act of Canada) a portion(s) of the demised premises containing in
the aggregate greater than eighty-four (84%) per cent of the rentable
area of the demised premises, until the Tenant has first delivered a
copy of the proposed assignment or sub-letting agreement to the
Landlord (the "Notice") and the Landlord shall, for a period of thirty
(30) days following receipt of the Notice, have the option to terminate
this lease by notice in writing to the Tenant on a date set by the
Landlord not to exceed sixty (60) days after the date of the Notice.
Failure by the Landlord to exercise the termination provisions herein
contained shall not affect nor alter the covenants or conditions of
this lease nor relieve the Tenant of any of its obligations or
responsibilities hereunder including, without limiting the generality
of the foregoing, the obtaining of the Landlord's consent pursuant to
paragraph 7.13 hereof, and the delivery of a subsequent Notice if the
proposal contained in the original Notice is not completed.
27.08 The provisions of this lease are subject to compliance with
The Planning Act, R.S.O. 1970, c. 349 as amended.
SUBORDI- 28.00 Provided that at the request of the Landlord, this lease and
NATION everything herein contained shall be deemed to be subordinate to any
charge or charges from time to time created by the Landlord with
respect to the demised premises, by way of mortgage, and the Tenant
hereby covenants and agrees that it will promptly, at any time and from
time to time, as required by the Landlord, during the term hereof,
execute all documents and give all further assurances to this proviso
as may be reasonably required to effect the postponement of its rights
and privileges hereunder to the holder or holders of such charge or
charges.
29.00 The Tenant covenants and agrees with the Landlord that it will
as and whenever reasonably required by the Landlord, certify or
acknowledge to any purchaser, bank or mortgagee as to the status
-23-
and validity of its lease and the status of the rentals and the
Tenant's account herein.
30.00 With respect to realty taxes and rates payable by the Tenant
pursuant to paragraph 7.02 above, the Landlord shall estimate the
amount sufficient to pay the said taxes for the remainder of the
calendar year falling within the first year of the term hereby granted,
and the Tenant shall pay, monthly, a sum equal to the proportion of
such estimated amount divided by the number of months remaining in the
calendar year. Thereafter, the Landlord shall reasonably estimate the
amount of taxes which will become payable in each subsequent calendar
year, and during such calendar year, the Tenant shall pay, monthly, and
in addition to any other sum otherwise payable hereby, an amount on
account of taxes which shall be equal to one-ninth (1/9) of the
estimated annual taxes, which sum shall be payable on the rental
payment date in each of January to September (both inclusive). In the
event that the actual taxes for the calendar year are greater than or
less than the amount estimated by the Landlord as aforesaid, the Tenant
shall either pay on demand by the Landlord, or to be credited with
respect to the difference accordingly.
REGIS- 31.00 The Tenant covenants that it will not register nor cause to be
TRATION registered the within lease against the registered title of the lands
more particularly described in Schedule "A" hereto. It is understood,
however, that in the event either Landlord or Tenant shall require
notice of such lease to be registered, then such notice shall be
prepared and registered at the expense of the party requesting same and
in accordance with the regulations governing such Notice of Lease as
may appear from time to time under the provisions of The Registry Act,
R.S.O. 1970 and amendments together with regulations and both
parties agree to execute such Notice of Lease upon request.
-24-
32.00 The Landlord and Tenant acknowledge that the lands and
premises outlined in red on Schedule "A" annexed hereto (the "Transport
Premises") are leased to Transport International Pool of Canada Limited
("Transport") for a term commencing May 1st, 1980, and that there shall
be maintained by Transport a driveway over that area shown hatched in
green on Schedule "A" (the "Driveway") and that the Driveway shall be
available for common use by the Tenant and Transport, and their
respective employees, servants, agents, licensees or invitees provided
neither the Tenant nor Transport shall restrict or impede the right of
the other to utilize the Driveway; and provided that a twenty foot
(20') strip west of the Driveway, as shown shaded yellow on Schedule
"A" annexed hereto shall be available to the Tenant, its employees,
servants, agents, licensees or invitees for parking purposes. If
required the Landlord shall use its best efforts to co-ordinate
Driveway usage as herein provided.
32.01 The Tenant shall have to option to renew this lease upon the
following terms and conditions:
(a) Provided the Tenant has duly paid, the rent, and has
regularly performed all the covenants herein contained,
the Landlord shall, not later than ten (10) months
prior to the expiry of the original term of this lease,
advise the Tenant in writing of the rental rate for a
renewal term of five (5) years.
(b) Not later than nine (9) months prior to the expiry of
the original term of this lease, the Tenant shall
advise the Landlord in writing of whether or not it
desires to exercise its option to extend the term of
this lease for a further period of five (5) years upon
the terms and conditions as are contained in this lease
(except as to further right of renewal) and at the
rental rate stipulated by the Landlord to sub-paragraph
(a) above.
-25-
32.02 In consideration of the execution of this lease by the Tenant,
the Landlord covenants and agrees:
(a) To assure that ample electric power will be available
to handle the proposed baseboard heaters.
(b) To modify the existing heating and cooling system at
its expense, and which modifications include:
(i) installing a ceiling diffuser pattern and
connecting ducts directly from the ductwork to the
diffusers. (This will allow the air flow to be
controlled).
(ii) installing a 5 ton 575 volt/3/60 roof-top air
conditioner with 150 MBH of heat, as well as a
ductwork distribution system with diffusers and
grilles. (This unit will serve the northerly
portion of the offices north of the foyer).
(iii) repairing and adjusting the multi-zone unit, to
assure proper cycling of the zones, and hot and
cold decks.
(iv) supplying and installing 11 additional electric
baseboards below the large glazed areas to protect
against down drafts. (This will require a new
distribution panel in the offices, wired from the
main splitter).
-26-
(v) guaranteeing the complete systems, including the
existing multi-zone unit for one year. These
systems when completed will maintain design
conditions as follows:
Summer 75 deg. F. indoors at 87 deg. F. outdoors
Winter 70 deg. F. indoors at -5 deg. F. outdoors
this work to be all inclusive, including roofing
and bases and wiring.
(c) To undertake a further $9,250.00 of improvements to the
building (repainting and other cosmetic applications)
as requested by the Tenant.
33.00 The Landlord and Tenant expressly acknowledge and agree that
the terms of the Original Lease shall govern the parties to and
including April 30th, 1980, and thereafter this lease shall govern; and
accordingly, and without limiting the generality of the foregoing as of
and from May lst, 1980, the rights of occupation in favour of the
Tenant shall be restricted to the demised premises (and the Driveway
and additional parking area as herein provided) and shall not extend to
the Transport premises.
IN WITNESS WHEREOF the parties have hereunto set their hands
and seals.
DUCON-MIKROPUL LIMITED
Per: Illegible
---------------------
---------------------
BRAMALEA LIMITED
Per: Illegible
---------------------
Vice President
---------------------
Vice President
LEASE AMENDING AGREEMENT
THIS AGREEMENT made as of the 11th day of April, 1991.
IN PURSUANCE of the Short Forms of Leases Act.
BETWEEN OR AMONGST:
BRAMALEA LIMITED
(hereinafter called the "Landlord")
OF THE FIRST PART
- and -
HOSOKAWA MICRON LIMITED, formerly
named MIKROPUL LIMITED, and previously
NAMED DUCON-MIKROPUL LIMITED
(hereinafter called the "Tenant")
OF THE SECOND PART
WHEREAS:
1. The Landlord and Tenant entered into a lease dated as of April 3, l980,
respecting approximately 18,496 sq. ft. in the building municipally known as
0000 Xxxxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxx, as more particularly described
therein, as amended by amending agreements dated as of May 1, 1986 and December
5, 1988, (the "Lease").
2. The Tenant has requested to extend the Lease term for ten (10) additional
years from May 1, 1991 to April 30, 2001, and the Landlord and the Tenant have
agreed upon the rental amounts and other terms respecting such extension,
including without limitation, the termination of the existing renewal option,
and the granting of an option to purchase upon the terms set out herein.
NOW THEREFORE WITNESSETH in consideration of the rents, covenants and
agreements hereinafter reserved and contained on the part of the Tenant to be
paid, observed and performed, and in consideration of the sum of $10.00 of
lawful money of Canada now paid by each of the parties to each of the other
parties herein (the receipt and sufficiency whereof are hereby acknowledged),
and in consideration of other good and valuable consideration (the receipt and
sufficiency whereof are hereby acknowledged), the parties agree as follows:
1. INCORPORATION BY REFERENCE
Except as otherwise expressly provided in this agreement the capitalized
terms used herein shall have the meanings attributed to them in the Lease.
-2-
2. EXTENSION OF TERM
The parties hereby confirm that the term has been extended for ten (10)
additional years from May 1, 1991 to April 30, 2001 (such period being referred
to herein as the Extended Term).
3. BASIC RENT DURING THE EXTENDED TERM
(a) During the first, second and third years of the Extended Term, the
Tenant hereby covenants to pay without any abatement or deduction
for any reason whatsoever the sum of Ninety-Four Thousand Three
Hundred and Twenty-Nine Dollars and Sixty Cents ($94,329.60) per
annum in equal consecutive monthly installments of Seven Thousand,
Eight Hundred and Sixty Dollars and Eighty Cents ($7,860.80) each on
the first day of each and every month during such period, together
with additional rent herein reserved.
(b) During the fourth and fifth years of the Extended Term, the Tenant
hereby covenants to pay without any abatement or deduction for any
reason whatsoever the sums of One Hundred and Seven Thousand, Two
Hundred and Seventy-Six Dollars and Eighty Cents ($107,276.80) per
annum in equal consecutive monthly installments of Eight
Thousand, Nine Hundred and Thirty-Nine Dollars and
Seventy-Three cents ($8,939.73) each on the first day of each and
every month during such period, together with additional rent
herein reserved.
(c) During the sixth, seventh and eighth years of the Extended Term, the
Tenant hereby covenants to pay without any abatement or deduction
for any reason whatsoever the sum of One Hundred and Sixteen
Thousand, Five Hundred and Twenty-Four Dollars and Eighty Cents
($116,524.80) per annum in equal consecutive monthly installments of
Nine Thousand, Seven Hundred and Ten Dollars and Forty Cents
($9,710.40) each on the first day of each and every month during
such period, together with additional rent herein reserved.
(d) During the ninth and tenth years of the Extended Term, the Tenant
hereby covenants to pay without any abatement or deduction for any
reason whatsoever the sum of One Hundred and Thirty-Three Thousand,
One Hundred and Seventy-One Dollars and Twenty Cents ($133,171.20)
per annum in equal consecutive monthly installments of Eleven
Thousand, and Ninety-Seven Dollars and Sixty Cents ($11,097.60) each
on the first day of each and every month during such period,
together with additional rent herein reserved.
-3-
4. WAIVER OR OPTION TO RENEW
The Tenant hereby expressly waives its option to renew set out in
paragraph 2 of the December 5, 1988 Amending Agreement, which option to renew
shall be of no further force or effect.
5. APPLICABLE TERMS AND CONDITIONS APPLYING TO LEASE
(a) During the period from May 1, 1991 to April 30, 1996 of the Extended
Term, except as herein amended the terms and conditions of the Lease
shall continue in full and effect.
(b) During the period from May 1, 1996 to April 30, 2001 of the Extended
Term, and any overholding or negotiated extension after such date,
the demised premises shall be governed by the Landlord's present
standard lease form terms and conditions, a copy of which is
attached as Schedule "C" hereto (the "Lease Form") and the Landlord
shall deliver to the Tenant, at least thirty (30) days prior to May
1, 1996, a restated lease, containing the terms and conditions of
the Lease Form, together with the Basic Rent amounts as set out
herein, and the Tenant agrees to execute same within fifteen (15)
days of delivery by the Landlord to the Tenant.
6. OPTION TO PURCHASE
(a) The Landlord as Vendor hereby grants to the Tenant as Purchaser a
personal, non-assignable, irrevocable option to purchase the demised
premises (sometimes referred to herein as the "Real Property") as
described in Schedule "A" annexed hereto and as outlined in red on
Schedule "B" annexed hereto, exercisable at any time between May 1,
1995 and February 1, 1996 (after which time this option shall
expire), provided that this Lease is then in existence and the
Tenant is not then in default hereunder, for the Purchase Price (as
defined in subparagraph (b) herein).
(b) "Purchase Price" means the aggregate of:
(i) $2,980,000.00; and
(ii) The amount, if any, up to a maximum of $25,000.00 required to
be paid by the Landlord as Vendor to any then existing
mortgagee of the Real Property in the nature of a prepayment
penalty, bonus or fee (the "Penalty") in order to obtain a
discharge of such mortgage on the closing date. The Landlord
covenants and agrees to pay the amount of the Penalty which is
in excess of $25,000.00.
-4-
(c) This option is exercisable by notice in writing to the Landlord,
such notice to be given in accordance with the terms of the Lease.
(d) Upon exercise of the option, there shall be paid to the Landlord's
solicitors, Xxxxxx & Xxxxxx, to be held in trust as a deposit the
sum of $100,000.00 which sum shall be applied to the Purchase Price
and held by the Landlord pending completion of the sale or other
termination of the Agreement arising from the exercise of the
option. The deposit as aforesaid shall be placed in an interest
bearing account or certificate of deposit (whichever bears the
highest interest rate) with all interest being for the account of
the Tenant. In the event that the Landlord and Tenant do not agree
in writing respecting the disbursement of the deposit, and any
interest thereon, the Landlord's solicitors shall retain the
deposit, and any interest thereon, in escrow until the Landlord and
the Tenant have agreed in writing as to disbursement thereof, or
until a trial adjudication of the issue by a court of competent
jurisdiction. Notwithstanding the foregoing the Landlord's
solicitors may pay the deposit, and any interest thereon, into court
or other secured depositary and shall thereafter be relieved of all
liabilities. Each of the parties hereby releases the Landlord's
solicitors from all liabilities whatsoever with respect to the
deposit, and any interest thereon, save and except for the gross
negligence or wilful misconduct of the Landlord's solicitors in that
regard, and hereby agree not to institute against or join the
Landlord's solicitors in any legal proceedings, and to indemnify and
hold the Landlord's solicitors harmless from any costs, losses or
damages whatsoever in relation thereto.
(e) The balance of the Purchase Price shall be paid to the Landlord as
Vendor by cash or certified cheque on date of closing subject to
usual adjustments.
(f) The sale shall be completed on April 30, 1996, unless on such day
the appropriate Land Titles Office or Registry Office is closed, in
which case the sale shall be completed on the next following day
when such office is open.
(g) The Landlord shall deliver to the Tenant an up-to-date location
survey of the Real Property showing the current location of all
buildings thereon within ten (10) days of exercise of the option.
The Tenant as Purchaser shall not call for the production of any
title deed, abstract of title, sketch or other evidence of title,
except such as are in Landlord's possession or under its control.
The Tenant as Purchaser shall be allowed forty-five (45) days from
the date of exercise of the option herein to examine its own expense
title to the Real Property and to satisfy itself that there are no
outstanding active files, deficiency notices or work orders
affecting the Real Property, that its present use may be lawfully
continued and that the buildings thereon may be insured against risk
of fire. The Landlord hereby consents to the municipality releasing
to the Purchaser details of all
-5-
outstanding active files, work orders or deficiencies affecting the
Real Property and agrees to execute and deliver to the Tenant such
further authorizations as the Tenant may reasonably require,
provided that no inspections shall be authorized or made.
(h) The Tenant as Purchaser agrees to accept title to the Real Property
subject to minor all rights and easements, if any, registered
against title for the supply and installation of telephone services,
electricity, gas, sewers, water, and other related services;
provided that title to the Real Property is otherwise good and free
of all easements, liens and encumbrances (and the Landlord covenants
to so discharge on or before closing) except:
(i) as herein expressly provided;
(ii) any registered restrictions, conditions or covenants that run
with the land; provided that such have been complied with;
(iii) any existing municipal agreements, including subdivision
agreement, development agreement and site plan, provided that
such have been complied with and the municipality states there
is satisfactory security to ensure future compliance.
(i) If the Tenant shall furnish the Landlord in writing with any valid
objection to title or to any outstanding active file, deficiency
notice or work order or to the fact that the present use may not
lawfully be continued or that the buildings located on the Real
Property may not be insured against risk of fire which the Landlord
shall be unable to remove, remedy or satisfy and which Tenant will
not waive. the Agreement resulting from the exercise of the option,
notwithstanding any intervening acts or negotiations in respect of
such objections, shall be null and void and all deposit monies paid
by the Tenant as Purchaser hereunder shall be immediately refunded
with interest and without deduction and the parties shall have no
further liability to each other with respect to the purchase
transaction, but the Lease shall remain in full force and effect.
Save as to any valid objections so made within such time and except
for any objection going to the root of the title, the Tenant as
Purchaser shall be conclusively deemed to have accepted the title of
the Landlord to the Real Property.
(j) The parties acknowledge that since the Lease is net to the Landlord,
there are no adjustments on closing.
(k) The Building shall be and remain at the risk of Landlord as Vendor
until completion. Pending completion the Landlord shall hold all
insurance policies, if any, and the proceeds thereof in trust for
the parties as their interest may appear pursuant to the Lease and
the agreement of purchase and sale arising from the exercise of the
option and in the event of
-6-
substantial damage. Tenant as Purchaser may, once the amount of the
proceeds of insurance is established, either terminate this
Agreement of Purchase and sale and have the deposit returned with
interest and without deduction, and pursue its elections pursuant to
the Lease, or else take the proceeds of any insurance and complete
the purchase.
(l) On completion of the sale transaction, the Landlord as Vendor shall
deliver a Statutory Declaration by an officer of the Landlord that
it is not then a non-resident of Canada with the meaning of the
Income Tax Act, a Declaration of a Senior Officer of the Landlord as
to the Landlord's possession of the Real Property in a form
acceptable to the Tenant's solicitors, acting reasonably, an
undertaking to readjust any error or omission in the Statement of
Adjustments and such further documents and assurances as the
Tenant's solicitor may reasonably require to complete the purchase
of the Real Property. The transfer shall, save for the Land Transfer
Tax Affidavit, be prepared in registrable form at the expense of the
Landlord as Vendor. The Transfer/Deed shall be prepared in
registrable form at the expense of the Landlord and if requested by
the Tenant the Landlord covenants that the Transfer/Deed shall
contain the statements contemplated by clauses 49(21a)(a) and (b) of
the Planning Act.
(m) Any tender of documents or money hereunder may be made upon the
Landlord as Vendor or Tenant as Purchaser or any solicitor acting
for either party and any money may be tendered by negotiable cheque
certified by a chartered bank or Province of Ontario Savings Office.
(n) Notwithstanding anything elsewhere herein contained the option shall
expire upon the valid determination or the herein Lease.
(o) The Tenant as Purchaser is registered under Subdivision d of
Division V of Part IX of the Excise Tax Act (Canada) ("ETA") for the
collection and remittance of the goods and services tax ("GST") and
the registration number for the Tenant is No. 1O2399417. The Tenant
will remit directly to the Receiver General of Canada the GST
payable and file the prescribed form GST 60 pursuant to Subsection
228 (4) of the ETA in connection with the sale and conveyance of the
Real Property. The Real Property being transferred on the closing
resulting from the purchase by the Tenant is being purchased by the
Tenant as principal for its own account and is not being purchased
by the Tenant as agent, trustee or otherwise on behalf of or for
another person and does not constitute a supply of a residential
complex made to an individual for the purposes of paragraph
221(2)(b) of the ETA. The Tenant shall indemnify and save harmless
the Landlord from any GST, penalty, interest or other amounts which
may be payable by or assessed against the Landlord, as Vendor, under
the ETA as a result of or in connection with the Landlord's failure,
as Vendor to collect and remit any GST applicable on the sale and
conveyance of the Real Property herein.
SCHEDULE A
ALL and SINGULAR that certain parcel or tract of land and premises,
situate, lying and being the City of Brampton in the Regional
Municipality of Peel being composed of Part of Block G, Registered
Plan 720 City of Brampton.
PLAN
OF SURVEY OF
CK G REGISTERED PLAN No. 720
TOWNSHIP OF CHINGUACOUSY
COUNTY OF PEEL
-7-
(p) In the event that the Tenant has a bona fide intention to exercise
the option to purchase herein, prior to exercise of such option to
purchase (but not thereafter) in order to satisfy itself with
respect to the environmental status of the Real Property, the
Tenant shall be entitled to conduct such environmental testing as
the Tenant reasonably requires, subject to the prior written
approval of the Landlord, acting reasonably, provided that such
testing does not interfere with the activities of other tenants at
the Real Property, and provided that such testing shall be at the
sole risk and expense of the Tenant, and the Tenant shall make good
any damage.
7. Effective Date
The provisions of this agreement shall come into force and have effect
from the date of execution hereof.
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
BRAMALEA LIMITED
PER: /s/ BUBBA MARRIOTT
----------------------------------
Bubba Marriot, VICE PRESIDENT
Per: /s/ XXXXX XXXXXX
----------------------------------
Xxxxx Xxxxxx
Vice-President
HOSOKAWA MICRON LIMITIED
Per:[Illegible]
----------------------------------
Per:[Illegible]
----------------------------------
**
(q) The Agreement of Purchase and Sale arising from the exercise of the Option
contained herein shall be effective to create an interest in the real
property only if the applicable Land Division provisions of the Planning
Act are complied with, and the Landlord agrees, at its expense, to comply
with such provisions and to proceed diligently with the application for
such compliance.
